Beruflich Dokumente
Kultur Dokumente
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.
A Commentary
M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R
4. Issues of Interpretation
4.1 Obligation to Prosecute Combined with Authorization to
Extradite
58 Article 7 is closely linked to Articles 5 and 6, which is underlined by
the drafting history.³² Article 5 establishes an obligation of States parties to
exercise jurisdiction over the crime of torture on various grounds, including
universal jurisdiction. Article 6 requires any State party, where an alleged tor-
turer is present (hereinafter referred to as the forum State), to ensure his or
her presence, usually by means of arrest and detention, and to inform other
relevant States for the purpose of enabling them, if they so wish, to make an
extradition request. Article 7 establishes an obligation of the forum State to
submit the case to its competent authorities for the purpose of prosecution,
³² See above, Art. 5, 2.2. On the travaux préparatoires of Art. 7 see also above, 2, and Boulesbaa,
208 et seq.
³³ An Italian proposal to establish an order of priority among the different grounds of juris-
diction, with the territoriality principle at the top and universal jurisdiction at the bottom, was
rejected. A similar proposal was made by the Chinese delegation during the final stage of drafting
of Arts. 5 and 7. See E/CN.4/1314/Add.4 and above, Art. 5, paras. 29, 52, 158.
³⁴ Art. 7 is based on the model of Art. 7 of the Hague Hijacking Convention which also merely
facilitates extradition. A duty to extradite was regarded generally as an undue interference with the
sovereignty of States: cf. Boulesbaa, 218 with further references.
³⁵ In relation to universal jurisdiction, Cassese (International Criminal Law, 285 et seq.) calls
this requirement (the so-called forum deprehensionis) the narrow notion of conditional universal jur-
isdiction, in contrast to the broad notion of absolute universal jurisdiction (ibid, 286 et seq.), which
is exercised on the premise of the failure of the territorial or national State to take proceedings and
which may also lead to criminal proceedings in absentia.
³⁶ During the drafting of Art. 5, a number of States proposed this condition for the exercise of
universal jurisdiction: see above, Art. 5, paras. 4, 29, 33, 34, 37, 39, 45, 52, 158, 160.
³⁷ Guengueng et al. v. Senegal, No. 181/2001, § 9.7. For the facts of the case see above, Art.5,
3.2.2, 4.1.