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

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 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

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 Article 7. Aut Dedere aut Iudicare 363
the competent authorities. Yet the Habré case constitutes an infamous example
of the attempts of a State’s prosecuting and judicial authorities to obstruct the
proper implementation of its obligations under the Convention to bring a sus-
pected torturer to justice. The finding of a violation of Article 7, therefore, fully
corresponds to the letter, spirit and purpose of Article 7, namely to avoid safe
havens for torturers.

4.3 Authorization of the Forum State under Article 7(1) to

Extradite an Alleged Torturer
65 If the forum State receives an extradition request from another State, it
has the choice between extradition and prosecution. Extradition is, however,
only permissible if it is done in accordance with international law. Extradition
as a form of mutual judicial assistance is usually regulated by bilateral or
multilateral extradition treaties. In order to facilitate the extradition of sus-
pected perpetrators of torture, Article 8 contains different provisions, such as
the assumption that torture is included as an extraditable offence in existing
extradition treaties between States parties and that the Convention shall be
considered as the legal basis for extradition in the absence of a respective extra-
dition treaty.⁴⁴
66 But extradition must also comply with the prohibition of refoulement
under Article 3 CAT. Consequently, if there are substantial grounds for believ-
ing that the suspected torturer, if extradited to one of the States exercising
jurisdiction in accordance with Article 5(1), would be in danger of being sub-
jected to torture, extradition would be absolutely prohibited.⁴⁵ States parties
to the CCPR or respective regional human rights treaties would also have to
take into account the prohibition to extradite a person to a State in which
there is a substantial risk of being subjected to other forms of cruel, inhuman
or degrading treatment or punishment.⁴⁶ In addition, under the ruling of the
Human Rights Committee in Judge v. Canada, a forum State that has abol-
ished the death penalty would not be allowed to extradite a suspected torturer
to a State where he or she would be in danger of being sentenced to death and/
or executed.⁴⁷ Other limitations on extradition can be derived from the right
of the accused to privacy and family life as stipulated in Article 17 CCPR,⁴⁸

⁴⁴ See below, Art. 8.

⁴⁵ See above, Art. 3, paras. 50–51, 76–77.
⁴⁶ Cf. Nowak, CCPR Commentary, 185 et seq.
⁴⁷ No. 829/1998; cf. Nowak, CCPR Commentary, 151 et seq.
⁴⁸ Cf. Nowak, CCPR-Commentary, 395 et seq.

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 364 United Nations Convention Against Torture
from the right of fair trial as stipulated in Article 14 CCPR and Article 7(3)
CAT, from procedural safeguards contained in Article 13 CCPR or from spe-
cific provisions restricting extradition in the respective bilateral and multilat-
eral extradition treaties. Finally, the very purpose of Article 7, namely to avoid
safe havens for torturers, requires that the forum State shall not extradite a sus-
pected torturer to another State, above all the territorial State or the national
State, that obviously misuses an extradition request for the purpose of shield-
ing the suspected torturer against proper criminal prosecution.
67 As stated above, Article 7(1) merely authorizes the forum State to choose
extradition above prosecution, but it does not establish any obligation to extra-
dite. Such an obligation would have had to be inserted in the Convention if
an order of priority among the different grounds of jurisdiction in Article 5
had been established. If the territorial or a national State had priority over
a forum State wishing to exercise universal jurisdiction, it would have been
necessary to oblige the forum State exercising universal jurisdiction, upon
request of the territorial or national State, to extradite the suspected torturer.
The reluctance of States to accept any binding obligations to extradite alleged
torturers to another State can easily be explained by the far-reaching inter-
ference of such an obligation with State sovereignty.⁴⁹ States simply do not
wish to find themselves bound to extradite alleged offenders to other States
which they may fundamentally distrust.⁵⁰ For example, during the debate in
the International Civil Aviation Organization Diplomatic Conference on the
drafting of the Hague Convention, numerous representatives expressed their
disapproval with proposals for a provision in the Convention which sought
to require an extradition treaty between themselves and other States as a con-
dition for extradition. Concern was expressed that this proposed language
would have the effect of binding States to unwanted extradition relationships
with specific States with which they did not wish to deal.⁵¹
68 The absence of any obligation to extradite under Article 7 does not
mean, however, that the forum State should not seriously consider any genuine
extradition request from another State. For the purpose of gathering evidence,
the territorial State is usually in a better position to carry out effective criminal
proceedings than a State that exercises universal jurisdiction. In many cases,
the State of which the suspected torturer is a national might be in the best pos-
ition to bring him or her to justice. But there might as well exist good reasons

⁴⁹ Cf. Boulesbaa, 218.

⁵⁰ Cf. Joseph L. Lambert, 192.
⁵¹ See International Civil Aviation Organization Doc. 8979-LC/165–1, 129, 182 (1972).

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 Article 7. Aut Dedere aut Iudicare 365
for not extraditing the person concerned to these States, which the forum State
shall take into account when taking a decision in accordance with Article 7.
69 In the Habré case, the Committee against Torture found a violation of
Article 7 on two different grounds. First, Senegal did not fulfil its obligations
under Article 7 because the Court of Cassation in March 2001 put an end to
any possibility of prosecuting Hissène Habré in Senegal and, thereby, violated
the State party’s obligation to prosecute.⁵² Secondly, after Belgium made a
formal extradition request in September 2005, presumably on the basis of
the passive nationality principle stipulated in Article 5(1)(c), the Committee
also considered this alternative solution and found that, ‘by refusing to com-
ply with the extradition request, the State party has again failed to perform
its obligations under article 7 of the Convention’.⁵³ At first sight, this hold-
ing seems surprising as it indicates an obligation to comply with a particular
extradition request. But it needs to be understood in the overall context of the
case and the Committee’s decision. The Committee did not find an obligation
to extradite per se, but an obligation to take a decision in accordance with the
principle aut dedere aut iudicare in Article 7 aimed at bringing Hissène Habré
to justice, either before its own courts or by extraditing him to Belgium. In
other words, if the forum State, on the basis of its domestic laws, is not in a
position to prosecute a suspected torturer, the choice between extradition and
prosecution turns into a legal obligation to extradite, provided that such extra-
dition is in accordance with international law.

4.4 Procedural Safeguards under Article 7(2) in Case of

Prosecution
70 During the discussion of drafting the principle of universal jurisdic-
tion under Article 5(2), many States expressed the concern that this particu-
lar ground might be exploited for political reasons, could result in trials on
the basis of spurious accusations and fabricated evidence and lead to frictions
between States.⁵⁴ These States gradually gave up their objections to the prin-
ciple of universal jurisdiction only after certain procedural safeguards were
inserted into Article 7 which shall prevent such misuse.
71 The wording of the first sentence of Article 7(2) was first suggested by
the UK delegation and was already included in the revised Swedish draft. It
applies to all grounds of jurisdiction and requires the authorities of the forum

⁵² Guengueng et al. v. Senegal, No. 181/2001, §§ 9.8 and 9.9: see above, 3.2.1.
⁵³ Ibid, § 9.11.
⁵⁴ See above, para. 32 and Art. 5, paras. 37, 38, 159.

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 366 United Nations Convention Against Torture
State to take their decision, whether to extradite or to prosecute, ‘in the same
manner as in the case of any ordinary offence of a serious nature under the law
of that State’. This simply means that the normal procedures relating to serious
offences, both in the extradition and criminal proceedings, and the normal
standards of evidence shall apply.⁵⁵
72 The second sentence of Article 7(2) only applies to the exercise of univer-
sal jurisdiction by the forum State and requires that the ‘standards of evidence
required for prosecution and conviction shall in no way be less stringent’ than
those which apply for prosecutions in the territorial or national State. This for-
mulation goes back to a compromise proposal of the Chairman-Rapporteur
after long discussions and gradually opened the way for a final consensus. His
proposal also convinced certain States advocating that the exercise of univer-
sal jurisdiction should be dependent on the rejection of an explicit extradition
request to withdraw their respective amendments and, therefore, avoided a
considerable weakening of the effectiveness of the Convention.⁵⁶ The second
sentence shall ensure that suspected torturers must not be prosecuted or con-
victed by exercising universal jurisdiction on the basis of insufficient or inad-
equate evidence. If the evidence is insufficient, the forum State shall apply to
the territorial or national State pursuant to Article 9(1) to supply all evidence
at their disposal necessary for the proceedings. If these States are not able or
willing to supply the necessary evidence, the forum State shall reconsider its
decision to prosecute and choose, as far as possible, the option of extradition to
these States. It may even delay the proceedings for a reasonable time in order
to negotiate a proper solution with the other State(s) concerned. If these efforts
fail as well, the strict procedural standards of Article 7(2) might even require
the forum State to stop the criminal proceedings and to release the suspected
torturer under the principle in dubio pro reo.

4.5 Right of the Alleged Torturer to Fair Treatment under

Article 7(3)
73 The obligation of States parties to guarantee to the alleged torturer ‘fair
treatment at all stages of the proceedings’ appeared first as Article 6(5) in the
revised Swedish draft.⁵⁷ In 1981, the Working Group decided to transfer this
provision to Article 7. While an amendment of the Netherlands submitted in

⁵⁵ Cf. Burgers/Danelius, 138.

⁵⁶ Ibid, 137.
⁵⁷ See above, Art. 6, 2.1.

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 Article 7. Aut Dedere aut Iudicare 367
1981 referred in this context to all ‘guarantees of a fair and equitable trial’,⁵⁸
the Swedish draft and the final version of Article 7(3) are broader and cover
all stages of the proceedings. This means that the right of the alleged torturer
to fair treatment starts at his or her arrest which, in accordance with Article
6(1), might be replaced by less intrusive measures to ensure his or her presence,
and continues through all stages of criminal investigations up to the extradi-
tion proceedings and/or the criminal trial. During interrogation, the alleged
torturer, of course, should not be subjected to any torture, cruel, inhuman or
degrading treatment. During custody, he or she must enjoy the right to habeas
corpus and other minimum rights of persons deprived of liberty as stipulated
in Article 9 CCPR. During the extradition procedure, he or she has the right
under Article 13 CCPR to be allowed to submit the reasons against such extra-
dition and to enjoy all other procedural rights stipulated in bilateral or multi-
lateral extradition treaties. In particular, he or she shall not be extradited to a
country where there exists a serious risk of torture or ill-treatment. In deciding
whether to extradite or prosecute, the forum State shall also take into account
whether the accused will enjoy a fair trial in the State which requested his or
her extradition. Finally, during the criminal trial, the suspected torturer must
enjoy all the guarantees of a fair trial as stipulated in Article 14 CCPR. In the
State reporting procedure, the Committee focused primarily on fair treatment
guarantees of suspected torturers.⁵⁹

⁵⁸ UN Doc. E/CN.4/L.1576.
⁵⁹ See above, 3.1.

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