Universal Criminal Jurisdiction over Torture: A State of Affairs after 20 Years UN Torture Convention
| Date | 01 December 2005 |
| Published date | 01 December 2005 |
| Author | Cedric Ryngaert |
| DOI | 10.1177/016934410502300403 |
| Subject Matter | Part A: Article |
UNIVERSAL CRIMINAL JURISDICTION
OVER TORTURE: A STATE OF AFFAIRS AFTER
20 YEARS UN TORTURE CONVENTION
CEDRIC RYNGAERT*
Abstract
Twenty years after signing the UN Torture Convention, States finally start to exercise universal
jurisdiction over torture offenses. In 2004 and 2005, courts in the United Kingdom, the
Netherlands and France, acting under the universality principle, convicted foreign torture
offenders to prison sentences. Practical hurdles to successful torture prosecutions remain high
though. In addition, a number of legal questions are not yet fully clarified, in particular the
operation of the principle of subsidiarity, the contours of the presence requirement and the
application of the UN Torture Convention to offences committed before the entry into force of the
convention. The outlook for universal jurisdiction over torture nonetheless seems reasonably
bright.
1. INTRODUCTION
Torture is widely considered as one of the most heinous violations of human rights.
As a derivative of the jus cogens nature of the crime
1
and in order for it to be
adequately prosecuted, extensive jurisdictional powers and even obligations for
States have been provided by the 1984 UN Torture Convention.
2
The UN Torture
Convention was, leaving aside the Apartheid Convention,
3
the first human rights
convention ever to provide for universal jurisdiction. More than 20 years on, no new
human rights treaties providing for universal jurisdiction have been adopted by the
international community. This bears witness to the exceptional nature of the
insertion of the universality principle into the Torture Convention. Moreover, this
exceptional nature is borne out by the fact that it took twenty years before the first
national torture trials were conducted on the basis of the universality principle.
Universal jurisdiction over torture offences is set forth in Article 5(2) of UN
Torture Convention, pursuant to which ‘each State Party shall (...) take such
Netherlands Quarterly of Human Rights, Vol. 23/4, 571-611, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 571
* Research fellow (Fund for Scientific Research Flanders), Institute for International Law, University
of Leuven (Belgium), visiting researcher European Law Research Center, Harvard Law School.
1
See on the jus cogens character of torture, De Wet, E., ‘The Prohibition of Torture as an
International Norm of jus cogens and Its Implications for National and Customary Law’, European
Journal of International Law, Vol. 15, 2004, p. 97.
2
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
10 December 1984 (1465 United Nations Treaty Series, 85). In accordance with its Article 27(1), the
Convention entered into force on 26 June 1987.
3
Article 5 of the International Convention on the Suppression of the Crime of Apartheid
30 November 1973 (1015 United Nations Treaty Series, 244).
572
measures as may be necessary to establish its jurisdiction over [torture] offences in
cases where the alleged offender is present in any territory under its jurisdiction and
it does not extradite him...’ By virtue of this provision, States are obliged to establish
jurisdiction over torture offences absent any nexus of these offences with their
territory, except the presence of the offender. To escape that obligation, States can
however still extradite the offender to a State that claims jurisdiction on the basis of
the traditional grounds of jurisdiction, namely the territorial and personality
principle, which are listed in Article 5(1)(a)-(c) of the Convention.
4
The
Convention thus establishes a regime of obligatory universal jurisdiction over
torture offences on the basis of the principle of aut dedere aut judicare (punire): States
are only obliged to exercise universal jurisdiction over an alleged torturer provided
that they do not extradite him.
5
Such a system should prevent torturers from seeking
safe havens and remaining unpunished.
In spite of the States Parties’ clear jurisdictional obligation under Article 5(2) of
the UN Torture Convention, it took 20 years before the first torture trials were
scheduled (section 8). Numerous legal and practical hurdles have prevented other
torture cases from reaching the final trial phase. In this article, I will discuss the legal
problems that have haunted prosecutors and courts in a number of European States
Parties to the Torture Convention, in particular in France, Spain, the Netherlands,
the United Kingdom, Germany and Belgium, the only countries that have shown an
openness to prosecute torture offences on the basis of the universality principle.
I will argue that different methods of implementation of Article 5(2) of the
Convention result in different prosecutorial outcomes (section 2). It comes as no
surprise that the three only States that ever conducted a torture trial – the
Netherlands, France and the United Kingdom – all have, unlike other States,
adopted specific implementing legislation. States that did not adopt such legislation
but rely instead on general enabling clauses, authorising their courts and
prosecutors to prosecute crimes against international law tend to be more reluctant
to prosecute torture offences or to qualify them as crimes against international
humanitarian law (section 3).
Cedric Ryngaert
4
A State has no duty to extradite to a State asserting universal jurisdiction, if the former State does
not exercise jurisdiction itself. Some States are however willing to extradite torture offenders to
States asserting universal jurisdiction over them. In the Pinochet Case for instance (see infra section
4.1), the English House of Lords approved of the extradition of General Pinochet to Spain for a
number of torture offences. Spain had claimed, inter alia, universal jurisdiction over the torture
offences Pinochet committed in Chile. To the extent that the Spanish extradition request was based
on the universality principle, Spain could, as a third State, not have expected its request to be
honoured by the United Kingdom in case the United Kingdom did not prosecute Pinochet.
Article 5 of the Torture Convention does however not oppose extradition to a third State such as
Spain: every State has the right to extradite a person to any other State as it deems fit, provided that,
in so doing, it does not infringe the human rights of the extraditable person. See Reydams, L.,
Universal Jurisdiction, Oxford University Press, Oxford, 2003, at pp. 67 and 209.
5
The drafters of the Convention drew inspiration for this aut dedere aut judicare clause from Article 4
of the Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970 (860
United Nations Treaty Series, 105); Article 5 of the Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation, 23 September 1971 (974 United Nations Treaty Series, 178);
Article 3 of the Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents, 14 December 1973 (1035 United Nations Treaty
Series 167); and Article 5 of the International Convention against the Taking of Hostages,
18 December 1979 (1316 United Nations Treaty Series, 205).
Conspicuously, the said torture trials, which all resulted in a conviction, dealt
with crimes committed after the entry into force of the UN Torture Convention for
the State Party concerned. This highlights another difficulty in bringing torturers to
account: could (implementing legislation of) the Torture Convention be retro-
actively applied to acts committed before its entry into force? (section 4). However,
not only does the application of the Torture Convention raise concerns about its
scope ratione temporis, its scope ratione loci is equally contested. Indeed, does the
Convention’s requirement to prosecute presumed torture offenders, once they are
located on the territory of a State Party, extend to offenders who are nationals of
States non-Parties? (section 5). The answer to both questions probably lies in a
permissive rule of customary international law, the actual crystallisation of which is
nonetheless unclear.
Possibly the most hotly debated aspects of universal jurisdiction, and not only
with respect to torture offences, concern the presence requirement and the
operation of a supposed principle of subsidiarity. In the context of the prosecution
of torture offences, I will examine if and how States have attempted to employ a
legitimising link of the extraterritorial torture offence with their territory, notably in
the form of a presence requirement, before they actually assert universal jurisdiction
(section 6). The role and legality of universal jurisdiction in absentia over torture
offences will be of topical importance here. I will argue in favour of limited
possibilities of exercising universal jurisdiction in absentia, if the presence of the
offender could be anticipated. Finally, I will shed light on the role that the principle
of subsidiarity could play as a tool to both stem the flow of torture complaints and
respect other States’ sovereignty (section 7). I will warn of the dangers contained in a
subsidiarity test that fails to take into account the merits of every individual case, lest
such a test result in too ready a dismissal of a case that is not effectively prosecuted in
the territorial State or the State of which the offender or the victim is a national.
6
Universal Criminal Jurisdiction over Torture
Netherlands Quarterly of Human Rights, Vol. 23/4 (2005) 573
6
The issue of immunity for international crimes will not be discussed in this article. A host of
publications are available addressing both immunity ratione personae (immunity for acts committed
by high-ranking officials) and immunity ratione materiae (immunity for acts committed while in
office as a State actor), especially in the wake of the Arrest Warrant Case before the International
Court of Justice (Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo vs Belgium), International Legal Materials, Vol. 41, 2002, p. 536). See, e.g., Simbeye, Y., Immunity
and International Criminal Law, Ashgate, Aldershot, 2004; Wouters, J. and De Smet, L, ‘The ICJ’s
Judgment in the Case Concerning the Arrest Warrant of 11 April 2000: Some Critical Observations’,
Yearbook of International Humanitarian Law, Vol. 4, 2004, p. 373; Winants, A., ‘The Yerodia Ruling of
the International Court of Justice and the 1993/1999 Belgian Law on Univeral Jurisdiction’, Leiden
Journal of International Law, Vol. 16, 2003, p. 491; Koivu, V., ‘Head-of-State Immunity v. Individual
Criminal Responsibility under International Law’, Finnish Yearbook of International Law, Vol. 12,
2003, p. 305; Wirth, S., ‘Immunity for Core Crimes? The ICJ’s Judgment in the Congo v. Belgium
Case’, European Journal of International Law, Vol. 13, 2002, p. 877; Orakhelashvili, A., ‘Arrest Warrant
of 11 April 2000’, American Journal of International Law, Vol. 96, 2002, p. 677; Sassoli, M., ‘L’arreˆt
Yerodia: quelques remarques sur une affaire au point de collision entre les deux couches du droit
international’, Revue Ge
´ne
´rale de Droit International Public, Vol. 106, 2002, p. 791; Morlet, P.,
‘Quelques conside´rations sur le statut pe´nal des gouvernants e´trangers, d’apre`s l’arret de la Cour
Internationale de Justice du 14 fe´vrier 2002’, Revue de Droit Pe
´nal et de Criminologie, Vol. 82, 2002, p.
979.
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