1 While Article 4 requires States parties to enact the crime of torture as part of their domestic criminal law, Article 5 stipulates an obligation for States parties to establish their jurisdiction over the crime of torture in a comprehensive manner in order to avoid safe havens for perpetrators of torture. In addition to the territoriality and flag principle, (p. 196) as well as the active and passive nationality principle laid down in Article 5(1), Article 5(2), for the first time in a human rights treaty, establishes the obligation of States parties to establish universal jurisdiction in all cases where an alleged torturer is present in any territory under their jurisdiction. The provisions of Articles 6 to 9 are closely related to Article 5 and further define the various steps which States need to take in order to bring suspected torturers to justice.
2 First, States must take the necessary legislative measures to establish jurisdiction in their respective domestic criminal codes in accordance with the various principles laid down in Article 5. States only enjoy in respect to the passive nationality principle in Article 5(1)(c) the discretionary power to decide whether or not to establish it. With respect to the territoriality, flag, active nationality, and universal jurisdiction principles, the obligation of States parties to entrust their courts with full jurisdiction is unambiguous. As the Committee against Torture decided in the Habré case against Senegal, the failure of the legislative power to establish universal jurisdiction (or any other type of jurisdiction required in Article 5) constitutes a violation of Article 5.
3 Secondly, the administrative and judicial authorities of States parties must also take specific steps in order to bring suspected torturers to justice. Under the territoriality, flag, and nationality principles in Article 5(1), criminal investigations should be initiated as soon as the authorities of a State party have sufficient information to assume that an act of torture has been committed in any territory under its jurisdiction, on board a ship or aircraft registered in that State, by one of its nationals or against one of its nationals (if the domestic law provides for jurisdiction under the passive nationality principle). Such investigations need to be conducted even when the suspected torturer is not present in the territory of the respective State or when the identity of the torturer is not yet known to the authorities. For the territorial State, the obligation to conduct prompt and impartial investigations, either ex officio or on the basis of a complaint, is also underlined by Articles 12 and 13 CAT. If the suspected torturer is outside the territory of the State which had initiated criminal investigations, its authorities may request extradition from another State, where this person is present, in accordance with Article 8 CAT. For torture cases, the Convention may even be considered as the legal basis for such extradition procedures.
4 In contrast to the territoriality, flag and nationality principles, the obligation to exercise universal jurisdiction only arises if the alleged offender is present in any territory under the jurisdiction of a State party. This is, however, the only condition for (p. 197) exercising universal jurisdiction. Other conditions, such as an extradition request by a third State, have clearly been rejected during the drafting of Articles 5 to 9, as was confirmed by the CAT Committee in the Habré case.2 In other words, if the authorities of a State party have reasonable grounds to believe that an act of torture has been committed by a person present on its territory (the so-called forum State), they have an obligation under Article 6 to take him or her into custody (or to take other measures to ensure his or her presence) and to make a preliminary inquiry into the facts. In addition, the forum State shall notify the territorial, flag, and/or national States of its actions and the outcome of its preliminary inquiry. If any of these States requests extradition, the forum State has the choice of either extraditing the suspected torturer or of prosecuting the person before its domestic criminal courts (aut dedere aut judicare in accordance with Article 7). If no State requests extradition within a reasonable time, the forum State has no choice but to prosecute the alleged offender. While other States parties have no obligation under the Convention to request extradition, as was confirmed by the Committee in the Roitman Rosenmann case3 concerning the extradition of General Pinochet from the United Kingdom to Spain, all other States parties have an obligation under Article 9 to provide judicial assistance to the forum State by, for example, supplying all evidence at their disposal.
5 In practice, States parties are extremely reluctant to exercise universal jurisdiction in torture cases. Except for the case of Zardad4 (in the United Kingdom), the few selected cases, in which the principle of universal jurisdiction under Article 5(2) was raised by the applicants, illustrate the attempts of States to avoid their respective responsibilities. As was illustrated by the cases of Al-Duri5 (in respect of Austria) and Almatov6 (in respect of Germany), the authorities usually fail even to arrest alleged perpetrators, thereby providing them with an opportunity to leave the country. The case of Ould Dah (in respect of France) shows that alternative measures to custody, such as judicial control orders, might fail to ensure the presence of suspected torturers. Even if the authorities of the forum State arrest a suspected torturer, extradition efforts might be undermined by reluctant Governments. In the case of General Pinochet, who was arrested by British authorities, the extradition request issued by a Spanish judge was not pursued by the Spanish Government with all the necessary vigour to secure his extradition to Spain. In the Habré case, the Government of Senegal even referred the case to the African Union and for a long time failed to enact the necessary legislative reforms to establish universal jurisdiction.
6 The Pinochet, Habré, and Bouterse cases illustrate that even former heads of State or Government are not immune from prosecution for acts of torture. But the International Court of Justice (ICJ), in Democratic Republic of Congo v Belgium,7 upheld the immunity of an incumbent Minister of Foreign Affairs for alleged crimes against humanity and war crimes. Similar to diplomatic and consular agents, certain holders of high-ranking governmental office, such as heads of State or Government and Ministers of (p. 198) Foreign Affairs, enjoy full immunity from jurisdiction in other States, both criminal and civil. This so-called immunity ratione personae is based on the notion that such protection is necessary to ensure the efficient performance of certain functions on behalf of the respective State. In the same judgment, the ICJ, therefore, confirmed that after ceasing to hold the position qualifying them for jurisdictional immunity, such persons also lose the protection of immunity ratione personae. They might, however, still enjoy functional immunity for all acts performed in the exercise of an official capacity (so-called immunity ratione materiae).