OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention

Against Torture

A Commentary

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 The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of

Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

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 Article 5. Types of Jurisdiction over the Off ence of Torture 317
6.2 The Obligation of States Parties to Establish Universal
Jurisdiction According to the Principle ‘aut dedere aut iudicare’
163 Both the wording of Article 5(2) and the travaux préparatoires clearly
indicate that States parties have a legal obligation to take the necessary legisla-
tive, executive and judicial measures to establish universal jurisdiction over the
offence of torture, as defined in Article 1 CAT. This means, in particular, that
States are not permitted to make the exercise of universal jurisdiction depend-
ent on any legal act of another State. All attempts by States in the Working
Group to establish an order of priority among the different grounds of juris-
diction mentioned in Article 5 or to make universal jurisdiction dependent on
a request for extradition by another State have been rejected by well-informed
decisions arrived at after extensive discussions. That ‘the obligation to pros-
ecute the alleged perpetrator of acts of torture does not depend on the prior
existence of a request for his extradition’ was also explicitly confirmed by the
Committee against Torture in the Habré case.¹⁷⁰
164 The only alternative to prosecuting an alleged torturer present in its
territory is to extradite him or her, in accordance with the principle ‘aut dedere
aut iudicare’ provided for in Article 7, to the State where the act of torture was
allegedly committed, to the flag State or to a State exercising jurisdiction on
the basis of the active or passive nationality principle. But extradition is only
possible on the basis of an extradition request from any of the States mentioned
in Article 5(1). If none of these States requests an extradition, the State where
the alleged torturer is present has no legal alternative other than to investigate
thoroughly the allegations of torture and, if the evidence found seems to be
sufficient, to prosecute the person concerned before its criminal courts.
165 If the State where the act of torture was allegedly committed (the ter-
ritorial State) or another State requests extradition, the State where the alleged
torturer is present (the forum State) has the choice of freely deciding whether to
prosecute or to extradite in accordance with bilateral or multilateral extradi-
tion treaties. Since no order of priority had been established among the various
grounds of jurisdiction in Article 5, there is no legal obligation to extradite
the alleged torturer to his or her State of nationality or to the State where the
act of torture was committed. On the contrary, in deciding whether or not to
extradite, the government must comply with the principle of non-refoulement
as laid down in Article 3 and with the purpose of Article 5, namely to avoid safe
havens for torturers. In other words, if there are any indications that the home

¹⁷⁰ Suleymane Guengueng et al. v. Senegal, Comm. No. 181/2001, § 9.7. See above, 3.2.2
and 4.1.

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 318 United Nations Convention Against Torture
State or the State where the act of torture was committed requested extradition
for the purpose of shielding the alleged torturer against effective prosecution,
such an extradition request shall not be met and the alleged torturer shall be
prosecuted under the universal jurisdiction principle. The same holds true if
the alleged torturer would be at risk of torture in a State requesting his or
her extradition, in particular if he or she belonged to a regime that was later
overthrown or if a State wishes to exercise jurisdiction on the ground that its
nationals had been subjected to torture.

6.3 What are the Conditions for Exercising Universal Jurisdiction?

166 The only conditions for exercising universal jurisdiction are the presence
of an alleged torturer in any territory under a State party’s jurisdiction, and reliable
information being available to the authorities of a government that the person
concerned has committed an act of torture anywhere in the world, at least by
instigation, consent or acquiescence. The broad formulation ‘present in any ter-
ritory under its jurisdiction’ makes clear that the obligation to exercise universal
jurisdiction also extends to territory under military occupation or similar de jure
or de facto control.¹⁷¹ The United States, which has been the strongest supporter
of the principle of universal jurisdiction, is, for example, required to establish
universal jurisdiction over any alleged torturer whom its armed forces detain in
Afghanistan, Iraq or any other place under their control, such as Guantánamo
Bay. The reason why an alleged torturer is present on the territory of a State
party is irrelevant. He or she might reside there as in the Habré case (Senegal),
might come temporarily for the purpose of medical treatment, as in the cases
of Pinochet (United Kingdom), Almatov (Germany) and al-Duri (Austria), for
educational purposes, as in the case of Ould Dah (France), for seeking asylum,
as in the Zardad case (United Kingdom) or for any other private or business rea-
son. Even the official invitation to attend a conference or similar event would
not release the authorities from exercising universal jurisdiction.
167 When does the alleged torturer have to be present in the territory of the
forum State? Article 5(2) clearly spells out that States parties shall establish
universal jurisdiction over torture in cases where the alleged offender is pre-
sent in its territory. One may, therefore, conclude that the alleged torturer
must be present in the territory of the forum State at the time when universal
jurisdiction is established. This is usually the time when criminal proceedings
are instituted against the accused under the ground of universal jurisdiction

¹⁷¹ For the interpretation of this formulation, which also can be found in Arts. 2(1) and 5(1)(a),
see above, para.145 and Art. 2, 4.1.2.

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 Article 5. Types of Jurisdiction over the Off ence of Torture 319
and/or the time when certain measures are taken against the accused, such as
arrest, pre-trial detention or similar legal measures aimed at ensuring his or
her presence in accordance with Article 6(1). In the Bouterse case, the Dutch
Supreme Court held that courts in the Netherlands shall not assert universal
jurisdiction in absentia. Preparatory investigations might start earlier, but at
the moment of instituting formal proceedings and/or issuing an arrest war-
rant, the suspected torturer must be present in the territory.¹⁷² This means, a
contrario, that proceedings may continue in absentia if the accused manages
to flee. This position was taken by the French Supreme Court in the Ould
Dah case. The Mauritanian army commander had been arrested and placed
in pre-trial detention by French authorities in Montpellier in 1999, but was
later released and put under judicial control. Although he managed to flee
to Mauritania, the Supreme Court remitted the case in October 2002 to the
Cour d’assises in Nimes for a trial in absentia. In July, 2005, the accused was
convicted and sentenced to ten years’ imprisonment in absentia.¹⁷³
168 The authorities of the forum State enjoy, of course, a certain margin of
discretion in deciding whether or not the information available is sufficient and
reliable enough to arrest the person concerned and to carry out proper crim-
inal investigations. In most cases in which the victims of torture, members of
Parliament, non-governmental or inter-governmental organizations urged a
government to take respective action, the government either denied its compe-
tence, as in the Al-Duri and Habré cases, or it denied having sufficient infor-
mation available to start criminal investigations, as in the Almatov case.¹⁷⁴ Of
these three well known cases, only the Habré case was submitted to the CAT
Committee which found a clear violation by Senegal of its obligations under
Articles 5(2) and 7. There can be no doubt that the Governments of Austria
(in the Al-Duri case) and Germany (in the Almatov case) also violated their
obligations under Articles 5(2) and 6. In particular, both Governments had
an obligation under Article 6 to ensure the presence of the suspected torturers.
Secondly, they were under an obligation to carry out a preliminary investi-
gation of the facts. If no other State had requested extradition of Mr. al-Duri
or Mr. Almatov, Austria and Germany, as forum States, would have had no
choice but to bring both individuals to justice before their domestic courts.

¹⁷² For the facts of the Bouterse case see above, 4.5.
¹⁷³ For the facts of the Ould Dah case see above, 4.6. The more liberal interpretation by Spanish
and Belgian courts does not seem to be in line with the requirement of Art. 5(2). See e.g. the Pinochet
case, above, 4.2; and the Habré case before Belgian courts, above, 4.1.
¹⁷⁴ For the facts of these cases see above, 4.1, 4.3 and 4.4.

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 320 United Nations Convention Against Torture
6.4 What are the Measures which States Parties shall Take?
169 First of all, States parties are under an obligation to take the necessary
legislative measures to establish the legal possibility of exercising universal juris-
diction in respect of the crime of torture. In the Habré case, the Government of
Senegal had argued, while being aware of the need to amend its legislation, that
‘under the Convention a State party is not bound to meet its obligations within
a specific time frame’ and ‘Senegal is engaged in a very complex process that
must take account of its status as a developing State and the ability of its judicial
system to apply the rule of law’.¹⁷⁵ The applicants, although rightly stressing
that ‘the State party was bound by the Convention from the date of its ratifi-
cation’ and ‘could have taken the opportunity to amend its national legislation
even before it ratified the Convention’, nevertheless submitted as a subsidiary
argument that Senegal violated Article 5(2) by ‘not adopting appropriate legis-
lation to comply with the Convention within a reasonable time frame’.¹⁷⁶ The
Committee against Torture, which already in its concluding observations on
the second periodic report of Senegal on 9 July 1996 had recommended that
the State party, during its current legislative reform, should have introduced
relevant provisions to ‘permit the State party to exercise universal jurisdiction
as provided in articles 5 et seq. of the Convention’,¹⁷⁷ took up this subsidiary
argument and based its finding of a violation of Article 5(2) on the consider-
ation that ‘the reasonable time frame within which the State party should have
complied with its obligation has been considerably exceeded’.¹⁷⁸
170 As soon as an alleged torturer is present in any territory under a State
party’s jurisdiction, the government is under an obligation under Article 6(1)
to ensure his or her presence by taking effective measures, above all by taking the
person into custody. The criminal investigation authorities shall immediately
make a preliminary inquiry into the facts in accordance with Article 6(2) and
notify all States referred to in Article 5(1), above all the alleged torturer’s home
State and the territorial State, of the custody, investigations and its further
intentions relating to the case and the possible exercise of universal jurisdiction
in accordance with Article 6(3) and (4). The territorial State, the home State of
the suspected torturer and other States parties are required by Article 9 to pro-
vide judicial assistance, including supply of all evidence at their disposal. The

¹⁷⁵ No. 181/2001, §§ 7.12 and 7.14.

¹⁷⁶ Ibid, §§ 8.2, 8.5 and 8.7.
¹⁷⁷ A/51/44, § 114.
¹⁷⁸ No. 181/2001, § 9.5. Senegal had ratified the Convention on 21 August 1986, and the
Committee adopted its decision on 17 May 2006, almost 20 years later. See above, 3.2.2.

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 Article 5. Types of Jurisdiction over the Off ence of Torture 321
Zardad case¹⁷⁹ provides a best practice example of active cooperation between
British prosecution officials and the authorities of Afghanistan, the United
States and other countries. If any of these States requests extradition, the rele-
vant authorities of the State where the alleged torturer is present must take a
decision whether to extradite or to prosecute him or her ‘in the same man-
ner as in the case of any ordinary offence of a serious nature under the law
of that State’, as required by Article 7(2). If the authorities of the forum State
opt for extradition, they must comply with the relevant provisions in Article
8, with the principle of non-refoulement in Article 3 and ensure, at the same
time, that the State requesting extradition is not shielding the alleged torturer
against proper criminal prosecution and punishment in accordance with the
letter and spirit of Articles 4 and 5. If they opt for prosecution, they must ensure
that the standards of evidence required for prosecution and conviction are not
less stringent than those which apply under jurisdiction exercised on the basis
of the territoriality or nationality principles, as stated explicitly in Article 7(2).
In other words, if the prosecuting authorities, after having carried out the
necessary investigations, arrive at the conclusion that the evidence provided
by the victims, by other States, inter-governmental or non-governmental organi-
zations is not sufficient to justify a formal prosecution, they may, of course, close
the proceedings as the principle of universal jurisdiction does not necessarily
require a formal prosecution or even conviction and punishment of the alleged
torturer. On the contrary, the suspect must be assisted in communicating with
the nearest embassy or consulate of his or her home State, as provided for in
Article 6(3), and, by virtue of Article 7(3) ‘shall be guaranteed fair treatment at
all stages of the proceedings’.

7. Immunity
171 How to strike a fair balance between the obligation of States to avoid safe
havens for perpetrators of international crimes and gross human rights viola-
tions, such as torture, on the one hand, and the principle of immunity for heads
of State and other high-level government officials and diplomats on the other
hand, is one of the most difficult and controversial issues of present international
law.¹⁸⁰ As Rosalyn Higgins, Peter Kooijmans and Thomas Buergenthal stressed in
their well-known concurring opinion to the ICJ judgment in Congo v. Belgium,

¹⁷⁹ See above, 4.9.

¹⁸⁰ For the rich literature on this topic see e.g. Cassese, (2002) 13 EJIL 853–875; Gaeta, (2003)
1 JICJ 186–196; Bassiouni, (2001) 42 VJIL 81; Dinstein, (1966) 15 ICLQ 76, 80.

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