8
United Nations Convention Against Torture and its Optional Protocol
for believing that he or she would be in danger of being subjected to torture. Since many
victims of torture flee their country and seek refuge in other countries, the principle
of non-refoulement constitutes an important means of protecting vulnerable groups. If
States were to respect this important principle properly, many cases of torture could be
prevented. It is interesting to note that the vast majority of individual complaints under
Article 22 CAT so far decided by the Committee against Torture relate to the principle
of non-refoulement.42
In addition to these measures aimed at preventing torture, a second category of State
obligations relates to the right of victims of torture to a remedy and adequate reparation for
the harm suffered. Article 13 provides that every victim of torture and cruel, inhuman or
degrading treatment or punishment has the right to complain to a competent domestic
authority which shall promptly and impartially examine every allegation and ensure that
victims and witnesses are adequately protected against intimidation and reprisals. If domestic remedies are not effective, Article 22 provides for the possibility for victims to
submit an individual complaint against the State party concerned to the Committee
against Torture. As mentioned above, this individual complaints procedure is, however,
optional and only sixty-eight out of the 162 States parties to CAT have made the respective declaration in accordance with Article 22(1).43 Victims of torture also have the
right to adequate reparation for the harm suffered, which consists primarily of fair and
adequate monetary compensation as well as medical, psychological, and other types of
rehabilitation (Article 14).
The third category of State obligations relates to the use of domestic criminal law against
perpetrators of torture and constitutes a special raison d’être for the entire Convention. First
of all, States are under an obligation to ensure that all acts of torture are offences under
their criminal law punishable by appropriate penalties which take into account their
grave nature (Article 4). This obligation of States parties to criminalize torture is modelled
on earlier counterterrorism treaties and was at the time of drafting of the Convention new
and almost revolutionary in the context of a typical human rights treaty. However, thirty
years after the entry into force of the Convention, we realize that only a minority of States
parties in fact fully complied with this important legal obligation.
In addition to including torture as a crime in their domestic criminal codes, States parties have an obligation to establish their jurisdiction on the basis of the territoriality, flag,
active and passive nationality as well as the universal jurisdiction principles (Article 5). In
other words, no safe havens for perpetrators of torture shall continue to exist in our contemporary global world. Wherever a perpetrator of torture is travelling or residing, the
authorities of the respective State have an obligation to arrest him or her, to make a preliminary inquiry into the facts, and to decide in accordance with the principle ‘aut dedere
aut iudicare’ whether to extradite the person to his or her country of origin, residence, or
commission of the act of torture, or to prosecute the person before their own domestic
criminal courts (Articles 5 to 9). Unfortunately, very few countries have so far complied
with these obligations, but a few encouraging cases show that the awareness is growing
that safe havens for perpetrators of torture, whether police officers, prison guards, military commanders, or Heads of State or Government of States responsible for systematic
practices of torture, are no longer permissible.44
See below Art 3, § 2 and Annex A7b, Figure 1.
See the survey of selected cases below Art 5.
42
44
See below Art 22, § 4.
43
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