III. THEMATIC SUMMARY OF SOME CENTRAL ISSUES PERTAINING TO THE CONVENTION
1. UNIVERSAL JURISDICTION
2. IMMUNITY TO HEADS OF STATES AND DIPLOMATS?
To be in a position to bring criminal proceedings against the offender, torture
must firstly be a crime in the domestic law of the State concerned. This issue is
addressed in Article 4 of the Convention, which obliges States Parties to ensure
that all acts of torture are offences under their criminal law. Secondly, the State
must have jurisdiction over the offence. This is ensured in Article 5, which provides that States Parties shall establish their jurisdiction, including universal jurisdiction, for the offence of torture. In other words, a State Party shall take any
necessary measures to establish its jurisdiction over the crime of torture, not only
in cases where the crime of torture is linked to the State by territoriality (the torture was committed on the territory of the State) or nationality (the offender is a
national of the State), but also in cases where the only link to the State concerned is the presence of the alleged offender on territory under the effective
control of the State. The States Parties are only allowed discretion concerning the
question of the establishment of universal jurisdiction in cases where the victim
of torture is their own national.
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Having ensured that torture is a crime in national law and that the States Parties
have established jurisdiction, including universal jurisdiction, over the crime,
Article 7 obliges States Parties to exercise such jurisdiction. The main provision
regarding the exercise of (universal) jurisdiction is Article 7 §1. It provides that
States Parties are obliged to either hand over suspected torturers in their territories to the prosecuting authorities for the purpose of prosecution, unless the
suspected torturers are to be extradited to another State with jurisdiction which
intends to prosecute them. This is also called the principle of aut dedere aut judicare, meaning “either extradite or prosecute”.
One important question is whether States Parties to the Convention may exercise
universal jurisdiction over nationals from non-States Parties. However, there now
appears to be a significant body of practice indicating that such jurisdiction is
permissible under international law.226
2. IMMUNITY TO HEADS OF STATES
AND DIPLOMATS?
Article 5 §2 of the Convention imposes an obligation on States to establish jurisdiction over all crimes of torture, irrespective of the status of the alleged
offenders. The rationale of the Convention is, after all, that suspects of torture
must not be able to find a safe haven, and that any suspect of torture must fear
prosecution always and everywhere.227
The CAT has expressed the view that the States’ obligations to bring alleged torturers to justice extends to the highest officials. In direct reference to the case
involving the former President of Chile, Pinochet Ugarte, whom the United
Kingdom had been requested to extradite to Spain on charges of, inter alia,
complicity in the torture of Spanish citizens, the CAT expressed the view that
Article 5 §2 of the Convention
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