1 For in depth analyses of national legislations and jurisprudence, particularly in relation to universal jurisdiction, see Cedric Ryngaert, ‘Universal Criminal Jurisdiction over Torture: A State of Affairs’ (2005) KU Leuven Faculty of Law, Institute for International Law, Working Paper No 66 (revised); Karen Janina Berg, Universal Criminal Jurisdiction as Mechanism and Part of the Global Struggle to Combat Impunity with Particular Regards to the Crime of Torture (Studienreihe des Ludwig Boltzmann Instituts für Menschenrechte, NWV, Neuer Wissenschaftlicher Verlag 2012); Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford University Press 2003); Wolfgang Kaleck, ‘From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998–2008’ (2009) 30 Mich J Int’l L 927; TRIAL International/FIDH/ECCHR/Redress/FIBGAR, ‘Make Way For Justice #3. Universal Jurisdiction Annual Review 2017’ (March 2017).
5 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).
6 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 92.
7 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.
9 Report of the Working Group of the Commission on Human Rights (1980) UN Doc E/CN.4/1367.
10 Report of the Working Group of the Commission on Human Rights (1981) UN Doc E/CN.4/L.1576.
11 See below Art 7 §§ 85–87.
13 Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72.
14 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) 134.
15 HBA et al v Canada, No 536/2013, UN Doc CAT/C/56/D/536/2013, 2 December 2015; see below Art 22, § 33.
16 The counsel sent the letter to the Attorney General of Canada on 19 September, a month prior to the expected visit of Mr. Bush. The Attorney General’s reply was dated with 7 November and merely acknowledged the receipt of the letter. Mr. Bush had left the country by then. See HBA et al v Canada, No 536/2013 (n 15) para 9.2.
17 The complaint also raised violations of Arts 5(2) and 7(1): ibid, para 3.4.
19 ibid, para 4.3. With a view to corroborate its decision, the State party asserted that no prosecution could go forward on the basis of the information package received by the complainant’s counsel, since it did not meet the evidentiary burden required to lay charges or obtain a conviction. The State party also alleged that the timing and volume of the information provided to the Attorney General would not have permitted a thorough investigation within the few weeks prior to Bush’s visit to Canada. Furthermore, according to the State party, the timing was also inadequate for the Attorney General to make a properly informed decision on the necessary consent in relation to the intended private prosecution (ibid, para 4.7.). With regard to its obligation to ensure the continuing presence of Mr. Bush, Canada argued that since the complainants’ allegations referred to executive acts of a US president, pertaining evidence would be only available in the US. In the absence of a reasonable expectation to obtain assistance from the US authorities, however, the State party allegedly had no basis on which it could take Bush into custody. Hence, according to Canada, the detention of Bush for the purpose of Article 6 was not warranted (ibid, para 4.3.). The State party further submitted that the Royal Canadian Mounted Police did not conduct an investigation, since there would have been no realistic prospect in October 2011, that sufficient evidence to support a charge against Bush could have been assembled so as to justify detention (ibid, para 4.17.). It concluded that it neither possessed key evidentiary elements nor were it likely to obtain them. Hence, the State party argued, the Royal Canadian Mounted Police did not launch an investigation, and maintained that it was an entirely reasonable conclusion (ibid, para 4.18.). The State party further argued that any decision to detain an alleged perpetrator in transit through Canada would require a consideration of the results of a criminal investigation. Only if an investigation reveals reasonable and probable grounds to believe an offence has been committed the alleged perpetrator can be put under arrest. Should charges not be laid within twenty-four hours, detention cannot continue (ibid, para 4.17.).
20 See below Art 22, § 33.
21 See also the submissions of the complainants and their counsels to the CAT Committee: CCR/CCIJ, ‘Hassan Bin Attash, Sami El-Hajj, Muhammed Khan Tumani, and Murat Kurnaz v Canada, Communication presented to the Committee against Torture, Pursuant to Article 22 of the Convention against Torture for Violation of Articles 5, 6 and 7 of the Convention’ 14 November 2012; CCR/CCIJ, ‘Re: CAT/536/2013, Hassan bin Attash et al, Communication against Canada, Reply to Supplemental Submission (Alleged Violation of Articles 5(2), 6 and 7 of the Convention against Torture)’ 17 July 2014.
22 See HBA et al v Canada, No 536/2013 (n 15) para 4.7.
24 ibid, para 4.18; see also Manfred Nowak and Elizabeth McArthur, The United Nations Convention against Torture: A Commentary (Oxford University Press 2008) 361.
25 HBA et al v Canada, No. 536/2013 (n 15) para 4.17.
26 See Burgers and Danelius (n 14) 134; Chris Ingelse, The UN Committee against Torture: An Assessment (Kluwer Law International 2001) 327; see also Berg (n 1) 264. Similar provisions are also included in the Convention for the Suppression of Unlawful Seizure of Aircraft (n 5) Art 6; 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) Art 6; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (adopted 14 December 1973, entered into force 20 February 1977) 1035 UNTS 167 Art 6; International Convention against the Taking of Hostages (adopted 17 December 1979, entered into 3 June 1983) 1316 UNTS 205 Art 6.
27 On the interpretation of Art 9(3) CCPR see Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) 230ff.
28 E/CN.4/1314 (n 6). See above § 5.