156. Furthermore, at the individual level, that is, that of
criminal liability, it would seem that one of the
consequences of the jus cogens character bestowed by the
international community upon the prohibition of torture is
that every State is entitled to investigate, prosecute and
punish or extradite individuals accused of torture, who are
present in a territory under its jurisdiction. Indeed, it
would be inconsistent on the one hand to prohibit torture
to such an extent as to restrict the normally unfettered
treaty-making power of sovereign States, and on the other
hand bar States from prosecuting and punishing those
torturers who have engaged in this odious practice abroad.
This legal basis for States’ universal jurisdiction over
torture bears out and strengthens the legal foundation for
such jurisdiction found by other courts in the inherently
universal character of the crime. It has been held that
international crimes being universally condemned
wherever they occur, every State has the right to prosecute
and punish the authors of such crimes. As stated in
general terms by the Supreme Court of Israel in Eichmann,
and echoed by a USA court in Demjanjuk, ‘it is the
universal character of the crimes in question ie.
international crimes which vests in every State the
authority to try and punish those who participated in their
commission’.
157. It would seem that other consequences include the
fact that torture may not be covered by a statute of
limitations, and must not be excluded from extradition
under any political offence exemption.”
There can be few issues on which international legal opinion is more
clear than on the condemnation of torture. Offenders have been
recognised as the “common enemies of mankind” (Demjanjuk v
Petrovsky 612 F Supp 544 (1985), 566, Lord Cooke of Thorndon has
described the right not to be subjected to inhuman treatment as a “right
inherent in the concept of civilisation” (Higgs v Minister of National
Security [2000] 2 AC 228, 260), the Ninth Circuit Court of Appeals has
described the right to be free from torture as “fundamental and
universal” (Siderman de Blake v Argentina 965 F 2d 699 (1992), 717)
and the UN Special Rapporteur on Torture (Mr Peter Koojimans) has
said that “If ever a phenomenon was outlawed unreservedly and
unequivocally it is torture” (Report of the Special Rapporteur on
Torture, E/CN.4/1986/15, para 3).
-28-
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents