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

Roland Schmidt

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 27 May 2022

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

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

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

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

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

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

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

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

1.  Introduction1

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

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

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

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

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

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

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

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

Article 4

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

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

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

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

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

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

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

Article 5

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

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

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

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

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

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

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

IAPL Draft (15 January 1978)10

Article IX (Jurisdiction)

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

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

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

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

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

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

10Original Swedish Draft (18 January 1978)11

Article 8

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

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

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

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

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

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

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

Article 5

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

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

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

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

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

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

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

Article 5

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

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

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

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

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

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

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

13  Brazilian Draft (1983)14

Article 5

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

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

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

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

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

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

2.2  Analysis of Working Group Discussions

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

15  In written comments the United States firmly supported the creation of an obligation to prosecute or extradite as one of the most effective means of deterring torturers. In the opinion of the United States the fact that torture is an offence of special international concern meant that it should have broad jurisdictional bases in the same way as the international community had conferred broad jurisdictional bases in the Hijacking, Sabotage,