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:
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:
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.