OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention

Against Torture

A Commentary

00-Nowak-Prelims.indd i 7/10/2007 7:50:32 AM

00-Nowak-Prelims.indd ii 7/10/2007 7:50:33 AM
 The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of

Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

00-Nowak-Prelims.indd iii 7/10/2007 7:50:33 AM

 Article 7. Aut Dedere aut Iudicare 359
applicants submitted their complaint in January 2000. Yet by its decision of
20 March 2001, which is not subject to appeal, the Court of Cassation put an
end to any possibility of prosecuting Hissène Habré in Senegal.
54 Consequently and notwithstanding the time that had elapsed since the
initial submission of the complaint, the Committee was of the opinion that the
State party had not fulfilled its obligations under Article 7 CAT.
55 Moreover, the Committee found that, since 19 September 2005, the
State party had been in another situation covered under Article 7, because
on that date Belgium had made a formal extradition request. At that time, the
State party had the choice of proceeding with extradition if it decided not to
submit the case to its own judicial authorities for the purpose of prosecuting
Hissène Habré.
56 The Committee considered that, by refusing to comply with the extra-
dition request, the State party had again failed to perform its obligations under
Article 7 CAT.
57 In finding a violation of Article 7 by Senegal, the Committee noted that
the State party was obliged under that provision to submit the case to its com-
petent authorities for the purpose of prosecution or, failing that, since Belgium
has made an extradition request, to comply with that request, or, should the
case arise, with any other extradition request made by another State, in accord-
ance with the Convention.

4. Issues of Interpretation
4.1 Obligation to Prosecute Combined with Authorization to
Extradite
58 Article 7 is closely linked to Articles 5 and 6, which is underlined by
the drafting history.³² Article 5 establishes an obligation of States parties to
exercise jurisdiction over the crime of torture on various grounds, including
universal jurisdiction. Article 6 requires any State party, where an alleged tor-
turer is present (hereinafter referred to as the forum State), to ensure his or
her presence, usually by means of arrest and detention, and to inform other
relevant States for the purpose of enabling them, if they so wish, to make an
extradition request. Article 7 establishes an obligation of the forum State to
submit the case to its competent authorities for the purpose of prosecution,

³² See above, Art. 5, 2.2. On the travaux préparatoires of Art. 7 see also above, 2, and Boulesbaa,
208 et seq.

09-Nowak-Chap07.indd 359 7/9/2007 1:32:56 PM

 360 United Nations Convention Against Torture
provided that it does not extradite the person concerned. Since Article 5 does
not establish any order of priority among the various grounds of jurisdiction,³³
there exists no obligation of the forum State to extradite the alleged torturer to
a State with a ‘better’ jurisdiction.³⁴
59 But the forum State is under an obligation to proceed to prosecution. The
choice between prosecution and extradition (aut dedere aut iudicare) is, there-
fore, an uneven choice. While the forum State may extradite an alleged tor-
turer to another State, provided that another State has requested his or her
extradition and that such extradition is permissible under international law,
the forum State must proceed to prosecution if it does not extradite the person
concerned. Prosecution is not subject to any condition other than the presence of
the alleged torturer on the territory.³⁵ In particular, prosecution is not depend-
ent on any extradition request having been made by another State and having
been rejected by the forum State.³⁶
60 This interpretation was confirmed by the Committee against Torture in
the Habré case. After noting that ‘the obligation to prosecute the alleged per-
petrator of acts of torture does not depend on the prior existence of a request
for his extradition’, the Committee stated that the alternative available to the
State party under Article 7 ‘exists only when a request for extradition has been
made and puts the State party in the position of having to choose between
(a) proceeding with extradition or (b) submitting the case to its own judicial
authorities for the institution of criminal proceedings, the objective of the
provision being to prevent any act of torture from going unpunished’.³⁷

³³ An Italian proposal to establish an order of priority among the different grounds of juris-
diction, with the territoriality principle at the top and universal jurisdiction at the bottom, was
rejected. A similar proposal was made by the Chinese delegation during the final stage of drafting
of Arts. 5 and 7. See E/CN.4/1314/Add.4 and above, Art. 5, paras. 29, 52, 158.
³⁴ Art. 7 is based on the model of Art. 7 of the Hague Hijacking Convention which also merely
facilitates extradition. A duty to extradite was regarded generally as an undue interference with the
sovereignty of States: cf. Boulesbaa, 218 with further references.
³⁵ In relation to universal jurisdiction, Cassese (International Criminal Law, 285 et seq.) calls
this requirement (the so-called forum deprehensionis) the narrow notion of conditional universal jur-
isdiction, in contrast to the broad notion of absolute universal jurisdiction (ibid, 286 et seq.), which
is exercised on the premise of the failure of the territorial or national State to take proceedings and
which may also lead to criminal proceedings in absentia.
³⁶ During the drafting of Art. 5, a number of States proposed this condition for the exercise of
universal jurisdiction: see above, Art. 5, paras. 4, 29, 33, 34, 37, 39, 45, 52, 158, 160.
³⁷ Guengueng et al. v. Senegal, No. 181/2001, § 9.7. For the facts of the case see above, Art.5,
3.2.2, 4.1.

09-Nowak-Chap07.indd 360 7/9/2007 1:32:56 PM