119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 the Convention against Torture is really an “obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere.” (para. 41 of the joint separate opinion) See Article 5, Geneva Convention on the High Seas (1958). See Geneva Convention on the Territorial Sea and Contiguous Zone (1958). Burgers & Danelius, ibid. note 54, p. 131. Burgers & Danelius, ibid. A subsequent grant of nationality to the accused is prohibited, if it is an attempt to avoid prosecution of the accused. Burgers & Danelius, ibid. note 54, p. 132. Ingelse, ibid. note 20, p. 320. Burgers & Danelius, ibid. note 54, p. 133. Moreover, whether universal jurisdiction in absentia is accepted in international law outside a few specific areas was disputed in the separate opinion of President Guillaume in the ICJ in the Congo v. Belgium case, ibid. note 117 (para. 16 of the separate opinion). Cf. Judge Van den Wyngaert who, in her dissenting opinion, found: “There is no rule of conventional international law to the effect that universal jurisdiction in absentia is prohibited” (para. 54 of the dissenting opinion), and that “there is no customary international law to this effect either.” (para. 55 of the dissenting opinion) Burgers & Danelius, ibid. note 54, p. 132: “[T]he general purpose of the Convention [is] to make it possible in all situations to prosecute torturers.” Burgers & Danelius, ibid. note 54, p. 132. Burgers & Danelius, ibid. note 54, p. 131. Amnesty International, “Universal jurisdiction: The duty of states to enact and enforce legislation”, AI Index: IOR 53/012/2001, chapter 9. Victims of torture submitted a communication to the Committee against Torture urging that it require Senegal to take measures to ensure Hissène Habrè’s presence in the country pending a determination whether the decision by the Cour de Cassation that Senegal did not have jurisdiction over charges against him of torture in Chad was lawful. The Committee on 23 April 2001 requested Senegal “not to expel Mr Hissène Habrè and to take all necessary measures to prevent Mr Hissène Habrè from leaving Senegalese territory except pursuant to an extradition procedure”; see Human Rights Watch, “United Nations asks Senegal to Hold Ex-Chad Dictator: Victory for Hissène Habrè’s victims”, 23 April 2001 (obtainable from http://www.hrw.org/press/2001/04/habre-cat0423.html). Ingelse, ibid. note 20, pp. 321-323. Cf. Amnesty International: “There is also some authority, as reflected in the interpretation of international treaty monitoring bodies and international experts for the view that all states —whether parties to the Convention against Torture or not— may not harbour persons suspected of torture, but must either exercise universal jurisdiction over suspects found in their territory or extradite them to a state able and willing to do so.” Amnesty International, ibid. note 128, chapter 9, p. 11. Rodley, ibid. note 56, p. 130. This position appears to be supported cautiously in the joint separate opinion of Judges Higgins, Kooijmans & Burgenthal in the Congo v. Belgium case from the ICJ, ibid. note 117 (see paras. 52 and 57). See also dissenting opinion of Judge Van den Wyngaert which states that “international law clearly permits universal jurisdiction for war crimes and crimes against humanity.” (para. 59) Ingelse, ibid. note 20, p. 318. CAT/C/SR.354, § 39. In Article 27: “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.” Article 7 § 1: “The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.” Article 6 § 2 has an identical wording to that of Article 7 § 1 of the Statute for the Yugoslav Tribunal. Report of the International Law Commission, forty-eighth session, July 1996, A/51/10. Congo v. Belgium, ibid. note 117, para. 51 of the judgment. Cf. dissenting opinion by Judge Van den Wyngaert, who argues that there is no basis in either positive international law or customary law to conclude that an incumbent minister of foreign affairs enjoys full immunity from foreign criminal jurisdiction. (para. 23 of dissenting opinion) Congo v. Belgium, ibid. note 117, para. 59 of judgment. Ibid., para. 61 of judgment. See the Preamble of the Vienna Convention on Diplomatic Relations (1961). See also Congo v. Belgium, ibid. note 117, para. 53 of judgment.