Advokaten 1
Gästkrönika crime of torture or any public emerge
ncy can justify its use. All States are obliged to investigate and prosecute allegations of torture and cruel, inhuman or degrading treatment, and they must ensure by every means that such practices are prevented.”5 The prohibition of torture is found in a number of international human rights and humanitarian treaties and applies even in times of war and terrorism.6 It is also considered a fundamental principle of customary international law and jus cogens. This means that the prohibition of torture is binding on all states, even if they have not ratified the relevant treaties. It is the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) that sets the fundamental obligation for all states to prosecute torture. Article 2(1) of CAT states that “[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” The prohibition of torture in CAT is absolute: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”7 There is absolutely no legal defence that can be proffered by the United States that would exempt the country from bringing to justice those who have perpetrated the crime of torture. The U.S. has a clear obligation under international law to prosecute any person who commits torture. Yet, as stated earlier, there is no realistic chance of prosecution in the United States. The question then arises about whether there is a mechanism, short of domestic prosecutions, that would ensure accountability for CIA agents and other govern ment officials who committed torture. In my opinion, there is one possible avenue: namely, the principle of universal jurisdiction. Under this principle, other states could arrest and prosecute anyone implicated in torture as set forth in the Torture Report. The principle of universal jurisdiction holds that every country has a responsibility to bring to justice the perpetrators of grave crimes, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims. It allows domestic courts to try and punish perpetrators of the most heinous crimes, including torture. If a state is unable to initiate a prosecution then it must extradite the person to a state or international court that can prosecute. However, the principle of universal jurisdiction is losing force and credibility internationally. There is growing evidence that states are retreating from the original and more aggressive interpretation of this principle. A more conditional form of universal jurisdiction, whereby states adopt substantive and procedural legislative changes that make it considerably more difficult to bring third parties to justice, has taken its place. This trend needs to be reversed. International pressure should remain on the United States to ensure that those officials who committed or authorized torture are brought to justice. And all countries should ensure that their own domestic legislation is robust enough to bring to justice those who commit these most heinous crimes, regardless of their status or location. Dr. Mark Ellis Executive Director of the International Bar Association, London. jurist.org/paperchase/2014/06/un-marks-international-day-in-support-ofvictims-of-torture.php accessed 11 December 2014. 6 Article 5 of the Universal Declaration of Human Rights (1948), Article 7 and 10 of the International Covenant on Civil and Political Rights (1966), Article 3 of the European Convention on Human Rights (1950), Article 5 of the American Convention on Human Rights (1978), UN Convention Against Torture and Advokaten Nr 1 • 2015 Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (1987), Inter-American Convention to Prevent and Punish Torture (1985). 7 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) of 1984, Art 2(2). 29 “However, the principle of universal jurisdiction is losing force and credibility internationally.”