90
United Nations Convention Against Torture and its Optional Protocol
complaints filed against public servants, investigations, prosecutions and convictions of
cases of torture and ill-treatment by law enforcement, security, military, and prison personnel or results of disciplinary proceedings, as well as on honour crimes, trafficking,
domestic and sexual violence, including sexual violence in detention, deaths in custody,
enforced disappearances, violence against minorities, and on means of redress, including
compensation and rehabilitation provided to the victims.138
3.2 Meaning of ‘any territory under its jurisdiction’
53 Article 4 of the 1975 Declaration and Article 3 of the Swedish draft referred to the
obligation of a State to take measures to prevent torture and other forms of ill-treatment
from being practised ‘within its jurisdiction’.139 In 1979, France proposed to replace these
words with ‘any territory under its jurisdiction’, because otherwise the obligation to prevent torture might even extend to a State’s own citizens resident in another country.140
But it was stressed that ‘any territory under its jurisdiction’ would also cover torture inflicted aboard ships, aircrafts and in occupied territories.141
54 This formulation, therefore, seems to be fairly clear. States have an obligation to
take measures to prevent torture in their own territory (land and sea), but also under
any other territory under their jurisdiction, such as aboard ships flying their flag, aircraft
registered in accordance with their laws, occupied territories, or other territories where
civilian or military authorities of the State exercise jurisdiction, whether lawful or not.
55 The Committee has explained that it understands the concept of ‘any territory
under its jurisdiction’ to be linked with the principle of non-derogability, and that it
includes ‘any territory or facilities and must be applied to protect any person, citizen
or non-citizen without discrimination subject to the jure or de facto control of a State
party’.142 This does not only mean the State party’s sovereign territory but ‘all areas where
the State partly exercises, directly or indirectly, in whole or in part, de jure or de facto
effective control, in accordance with international law’.143 According to the Committee,
States have an obligation to take measures to prevent torture not only on board of ships
or aircrafts under the flag of the State party, but also during military occupation or peacekeeping operations, in places such as embassies, military bases, detention facilities, or any
other areas over which the State party exercises factual or effective control. This interpretation is applicable also to other CAT Articles as well as the OPCAT.
56 The Committee has confirmed this interpretation equally in the individual complaints procedure, as well in its Concluding Observations. In the case Fatou Sonko v Spain,
where Spanish Civil Guard officers exercised control over persons on board of a vessel
and the Committee therefore emphasized the State Party’s responsibility for the persons’
safety.144 In its Concluding Observations to the UK’s report the Committee underlined
its concern and called upon the UK to ‘publicly acknowledge that the Convention applies
to all individuals who are subject to the State party’s jurisdiction or control, including
to its armed forces, military advisers and other public servants deployed on operations
138
CAT/C/GC/2 (n 1); CAT, ‘Concluding Observations: Cambodia’ (2011) UN Doc CAT/C/KHM/CO/
2, para 19; CAT/C/SEN/CO/3 (n 93) para 11; CAT/C/NZL/CO/6 (n 60) para 12; CAT/C/ROU/CO/2 (n
74) para 11; CAT/C/RUS/CO/5 (n 67) para 15; CAT/C/BOL/CO/2 (n 99) para 19.
139
140
See above 2.1.
See above 2.2.
141
See E/CN.4/1347, para 32; Burgers and Danelius (n 14) 123ff. See also Boulesbaa (n 26) 74.
142
143
CAT/C/GC/2 (n 1) para 7.
CAT/C/GC/2 (n 1) para 16.
144
Fatou Sonko v Spain, No 368/2008, UN Doc CAT/C/47/D/368/2008, 25 November 2011, para 10.3.
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