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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.9 Mutual Judicial Assistance

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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 29 June 2022

Subject(s):
Torture — Extradition and mutual assistance — Treaties, interpretation — Jurisdiction of states, territoriality principle — Jurisdiction of states, universality principle

(p. 302) Article 9  Mutual Judicial Assistance

  1. 1.  States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.

  2. 2.  States Parties shall carry out their obligations under paragraph 1 of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

1.  Introduction

Articles 4 to 9 aim at avoiding safe havens for torturers by requiring States parties to criminalize torture (Article 4) and to establish different types of jurisdiction for the criminal offence of torture, including universal jurisdiction on the basis of the principle aut dedere aut judicare (Articles 5(2) and 7), as well as by obliging the forum State, ie any State party on the territory of which a suspected torturer is present, to take him or her into custody, carry out a preliminary inquiry of the facts, and to proceed either to prosecution or extradition (Articles 6 and 7). These principle obligations are facilitated by removing legal obstacles to extradition (Article 8) and by requiring States parties to afford each other the greatest measure of mutual judicial assistance (Article 9). In particular, the State in which the act of torture has been committed (the territorial State) and the State of which the suspected torturer is a citizen (the national State) are under an obligation to provide the forum State with all the evidence needed to proceed with the prosecution.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Hijacking Convention, 16 December 1970)1

Article 10

  1. 1.  Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offence and (p. 303) other acts mentioned in Article 4. The law of the State requested shall apply in all cases.

  2. 2.  The provisions of paragraph 1 of this Article shall not affect obligations under any other treaty, bilateral or multilateral, which governs or will govern, in whole or in part, mutual assistance in criminal matters.

Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Civil Aviation Convention, 23 September 1971)2

Article 11

  1. 1.  Contracting States shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offences. The law of the State requested shall apply in all cases.

  2. 2.  The provisions of paragraph 1 of this Article shall not affect obligations under any other treaty, bilateral or multilateral, which governs or will govern, in whole or in part, mutual assistance in criminal matters.

Original Swedish Draft (18 January 1978)3

Article 15

  1. 1.  States Parties shall afford one another the greatest measure of assistance in connection with proceedings referred to in article 11, including the supply of all evidence at their disposal necessary for the proceedings.

  2. 2.  The provisions of paragraph 1 of this article shall not affect obligations concerning mutual judicial assistance embodied in any other treaty.

United States Draft (19 December 1978)4

  1. 1.  Each State Party shall, consistent with its own laws, afford the greatest measure of assistance in connection with proceedings brought under this Convention in any other State Party, including the supply of all evidence at its disposal necessary for the proceeding. The law of the State requested shall apply in all cases.

  2. 2.  The provisions of paragraph 1 of this article shall not affect obligations under any other treaty, bilateral or multilateral, which governs or will govern, in whole or in part, mutual assistance in criminal matters.

Revised Swedish Draft (19 February 1979)5

Article 9

  1. 1.  States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in Article 4, including the supply of all evidence at their disposal necessary for the proceedings.

  2. (p. 304) 2.  The provisions of paragraph 1 of this Article shall not affect obligations under any other treaty, bilateral or multilateral, which governs or will govern, in whole or in part, mutual assistance in criminal matters.

2.2  Analysis of Working Group Discussions

In written comments based on Article 15 of the original Swedish draft, the United States suggested specifying, as had been done in other international conventions, that when supplying evidence, the law of the State requested shall apply and proposed a redraft of the original Swedish draft.6 The French delegation suggested that the phrase ‘the greatest measure of assistance in connection with proceedings’ be replaced by the phrase ‘the greatest measure of assistance in all criminal proceedings’ and that paragraph 2 of the Article should follow the lines of the relevant provisions of the Hague Hijacking Convention (Article 10(2)) and the Montreal Civil Aviation Convention (Article 11(2)). Accordingly, Article 15 of the original Swedish draft was reworded and became Article 9 of the revised Swedish draft. As a result of discussions in the Working Group in 1982,7 paragraph 2 of Article 9 was redrafted, and the whole Article, in its modified form, was adopted by the Working Group.8

3.  Issues of Interpretation

3.1  Obligation to Provide Judicial Assistance to the Forum State

The Convention is based on the principle that States parties shall establish jurisdiction to try alleged torturers present in their territories. If the forum State has no link to the territory where the crime of torture was committed or to the nationality of the perpetrator or the victim, it nevertheless has the duty to exercise universal jurisdiction.9 The only alternative to prosecution is extradition to another State.10 Although Article 8 is intended to remove, as far as possible, legal obstacles to extradition, the forum State can only avail itself of this alternative if another State makes an explicit extradition request and if extradition to this State is permissible under domestic and international law, and if it will actually lead to prosecution in the requesting State. Extradition to the territorial or national State would, for example, not be in accordance with the Convention in the case of a serious risk that the alleged offender would be subjected to torture, or, on the other hand, that the alleged offender would be shielded from prosecution.

Although all States parties to the Convention have an obligation to criminalize torture with appropriate penalties and to bring all perpetrators of torture to justice,11 most States in which torture nevertheless occurs in practice have no strong interest in prosecuting their own officials. Here lies one of the main differences to most other crimes under international law, such as piracy or terrorist crimes. While pirates or terrorists are usually private individuals whose arrest, prosecution, or extradition is in the interests of Governments, torturers are usually public officials whose arrest, prosecution, or extradition is not in the (p. 305) interest of their ‘own’ countries, be they the territorial or the national State. Consequently, the principle of universal jurisdiction or jurisdiction based on the passive nationality principle seems to be even more important in relation to the crime of torture than to most other crimes under international law. To eliminate safe havens for torturers would, therefore, require that States parties actively pursue their obligations under the passive nationality and universal jurisdiction principles and that they are willing to bring the perpetrators to justice before their own courts rather than to rely on the alternative of extradition.

10  Prosecution under these two principles requires, however, that the forum State is in a position to gather all relevant evidence, including witness testimonies and documentary evidence. Without the active judicial assistance of the territorial and/or the national State, the forum State would often not be able to carry out effectively criminal investigations necessary for the prosecution of the alleged offender. Similarly, during the criminal trial the courts in the forum State might still need the judicial assistance of the territorial or national State.

3.2  Article 9(1): Provide Greatest Measure of Assistance

11  Article 9(1), which is based on Article 15 of the original Swedish draft,12 establishes an obligation on States parties to afford one another the greatest measure of assistance in connection with criminal proceedings against alleged torturers. Although Article 9 speaks about mutual (‘one another’) assistance, this obligation primarily applies to the territorial and the national State of the alleged torturer. These two States shall supply all evidence at their disposal necessary for the criminal proceedings to other States parties exercising universal jurisdiction or jurisdiction on the basis of the passive nationality principle. Since the territorial or the national State are often not particularly interested in such prosecution, there is more than a theoretical risk that such States parties would also violate their respective obligations under Article 9(1). But the States exercising jurisdiction and requesting judicial assistance from other States parties can invoke the obligation of Article 9 in relevant legal proceedings if such assistance is not provided.

12  In this regard, the Committee against Torture expressed serious concern regarding the ‘draconian system of secrecy’ surrounding ‘high value detainees’ held by the United States in the context of the so-called ‘war on terror’. The regime applied to these detainees not only prevented access to effective remedies and reparations, but also hindered investigation into human rights violations by other States due the United States’s failure to provide the mutual assistance demanded by Article 9. The Committee therefore called upon the State party to ‘take effective steps to ensure the provision of mutual assistance in all matters of criminal procedure regarding the offence of torture and the related crimes of attempting to commit, complicity and participation in torture’.13

13  Similarly, the Committee took also issue with Vatican’s reported failure to provide civil authorities with information pertaining to the investigations into allegations of sexual abuse of minors by clergy members. The Committee urged the State party to take effective steps to ensure the provision of information to civil authorities in cases where they are carrying out criminal investigations of violations of the Convention perpetrated by Catholic clergy or acquiesced to by them. The State party should ensure the (p. 306) procedures for requesting such cooperation are clear and well-known and that requests for cooperation are responded to promptly.14

14  In its concluding observation to Sierra Leone’s first State report, the Committee took note of the State party’s Extradition Act; however, it voiced concern that there are no provisions in the act which provide for mutual judicial assistance regarding crimes as stipulated in Article 4.15

15  However, as held in the inadmissibility decision by the Committee in the case of Rosenmann v Spain, Article 9 does not impose any obligation for a State party to seek an extradition or to insist on its procurement in the event of a refusal. The applicant had invoked that Spain’s handling of the extradition proceedings regarding General Augusto Pinochet from the United Kingdom failed to meet the requirement of Article 9(1) of the Convention. The Committee concluded, inter alia, that while the Convention imposed an obligation to bring to trial a person, who is found on its territory and alleged to have committed torture, no obligation to seek an extradition can be deduced from Article 9 (and 8). The complaint was decided to be inadmissible.16

3.3  Article 9(2): Conformity with Treaties on Mutual Judicial Assistance

16  In the case where two States parties are at the same time parties to a treaty on mutual judicial assistance, such as the EU Convention on Mutual Assistance in Criminal Matters,17 Article 9(2) contains a savings clause to the effect that the legal assistance provided under Article 9(1) shall be carried out in conformity with such a treaty. It is also clear that the judicial assistance provided must be in conformity with the domestic laws of the State which provides such assistance. If certain evidence, such as information extracted by torture, is inadmissible before the courts in the requested State, it must also not be made available to the requesting State by means of judicial assistance.18

17  Panama responded for instance in 1993 that mutual legal cooperation existed between Panama and other States regardless of whether a formal bilateral agreement was in place.19 Canada indicated that it could cooperate with another country in accordance with Articles 8 and 9 regardless of whether bilateral treaties on mutual legal assistance existed. As an example of how the procedure of mutual legal assistance was applied in practice, information was provided on the assistance given by Canada at the request of Chile in 1993 in connection with a torture-related prosecution there.20

18  While Article 9(2) states that States parties shall carry out their obligations under Article 9 ‘in conformity with any treaties on mutual judicial assistance that may exist between them’, such treaties may nevertheless not run counter the Convention’s purpose of bringing persons responsible for acts stipulated in Article 4 to justice. In this regard, the Committee criticized Benin for its conclusion of an agreement with the United States (p. 307) to the effect that US citizens present in Benin cannot be transferred to the International Criminal Court (ICC) when accused of war crimes or crimes against humanity. In its concluding observations to Benin’s second State report, the Committee found such an agreement to be incompatible with Article 9 of the Convention.21

19  A ‘best practice’ case for the implementation of Article 9 is the cooperation between the United Kingdom, the United States, and Afghanistan leading to the conviction of former Afghan warlord Faryadi Sarwar Zardad on the basis of universal jurisdiction in the UK in 2005.22 Zardad had been a warlord in Afghanistan, running a checkpoint between Jalalabad and Kabul, at which travellers were frequently abducted and subjected to torture and ill-treatment. In 1998 he arrived in the United Kingdom to seek asylum. After his crimes came to light in the British media, Attorney General Lord Goldsmith announced that Britain had decided to try the case on the basis that his crimes were so ‘merciless’ and such ‘an affront to justice’ that they should be tried in any country.23 Afghanistan and the United Kingdom, being parties to the Convention, were bound by the obligations that flow from it, including Article 9. Given that the United Kingdom had an obligation under the Convention either to ‘extradite or prosecute’, and given that no request for extradition had been received from the Afghan authorities, it fell to the United Kingdom to investigate and, if the test for prosecution was met, to prosecute Zardad.

20  Although Afghanistan had not requested his extradition, Afghan authorities actively supported the investigation teams of the British Crown Prosecution Service travelling altogether nine times to Afghanistan. In addition, the United States provided security support. Investigators within the Anti-Terrorist branch of the Metropolitan Police coordinated the investigation from London while sending delegates from the Branch to Afghanistan. The responsibility for prosecution lay with two prosecutors within the Counter-Terrorism Department of the Crown Prosecution Service. The prosecution went to Afghanistan together with the police on three occasions to ensure that statements taken from witnesses were sufficiently detailed. The prosecution also travelled with investigators to gain an understanding of the living circumstances of the witnesses and victims in Afghanistan, in order to assess the challenges witnesses might face in court. Due to logistical and security challenges in locating witnesses, television and radio broadcasts were used to encourage witnesses to come forward. In the United Kingdom, cooperation between the police, Crown Prosecution Service, and the Home Office was necessary to facilitate the bringing of witnesses to testify. The Foreign and Commonwealth Office referred the investigators’ initial request for assistance to relevant authorities in the Afghan Government, which subsequently contacted the British embassy in Kabul. From that time, all further requests for assistance were dealt with by the British embassy directly. In addition, British authorities cooperated with US military and diplomatic personnel because of the need to conduct investigations in an area of (p. 308) Afghanistan under the effective control of US military forces. Prior to the investigation, the permission of the armed forces was obtained, and during the investigation in these areas protection was provided by US military personnel. While the prosecution against Zardad did not make use of Interpol, the police relied on Interpol contact points from the Netherlands and Denmark as both had experience of investigation of international crimes committed in Afghanistan. In total, the trial was estimated to have cost over £3 million.

Roland Schmidt

Footnotes:

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

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

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

4  Summary by the Secretary-General in Accordance with Commission Resolution 18 (XXXIV) of the Commission on Human Rights (1978) UN Doc E/CN.4/1314, para 96.

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

6  E/CN.4/1314 (n 4) para 92.   

7  E/CN.4/1983/L.40.

8  See J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 140–41.

9  See above Art 5 §§ 86–176.

10  See above Art 7 §§ 54–60.

11  See above Art 4.

12  E/CN.4/1285 (n 3); see above § 4.

13  CAT, ‘Concluding Observations: USA’ (2014) UN Doc CAT/C/USA/CO/3-5, para 15.

14  CAT, ‘Concluding Observations: Holy See’ (2014) UN Doc CAT/C/VAT/CO/1, para 14.

15  CAT, ‘Concluding Observations: Sierra Leone’ (2014) UN Doc CAT/C/SLE/CO/1, para 22.

16  Roitman Rosenmann v Spain, No 176/2000, UN Doc CAT/C/28/D/176/2000, 30 April 2002. See also above Art 5 §§ 75–78.

17  European Union Convention on Mutual Assistance in Criminal Matters (adopted on 29 May 2000) OJ C197/1.

18  See also Burgers and Danelius (n 8) 141.

19  CAT, ‘Concluding Observations: Panama’ (1993) UN Doc A/48/44, paras 311–41.

20  CAT, ‘Concluding Observations: Canada’ (1993) UN Doc A/48/44, paras 284–310.

21  CAT, ‘Concluding Observations: Benin’ (2008) UN Doc CAT/C/BEN/CO/2, para 16.

22  Regina v Faryadi Sarwar Zardad [2005] High Court, Judgment, 18 July 2005. No written judgment is available; see Crown Prosecution Service, ‘The Counter Terrorism and Special Crime Division of the Crown Prosecution Service: Successfully concluded war crimes prosecutions since 2001—Faryadi Zardad’; see also Regina v Faryadi Sarwar Zardad [2007] EWCA Crim 279. See also above Art 5 §§ 120–21; Wolfgang Kaleck, ‘From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998–2008’ (2009) 30 Mich J Int’l L 940.

23  ‘UK Court Convicts Afghan Warlord of “Heinous” Crimes’ The Guardian (London, 18 July 2005) <https://www.theguardian.com/uk/2005/jul/18/afghanistan.world> accessed 24 November 2017.