In their recent paper, “Torture by Private Actors and ‘Gold-Plating’ the Offence in National Law: An Exchange of Emails in Honour of William Schabas,” Professors Paola Gaeta and Andrew Clapham discussed whether States Parties to the United Nations Convention Against Torture (UNCAT) are obliged to make torture a separate criminal offense under domestic law. This question has been met with different answers over time. While some scholars believe the UNCAT itself does not specifically say there must be a distinct offense or definition named “torture” in domestic law, the UN Committee Against Torture (CAT) has consistently stated, including in a General Comment, that the introduction of a separate offense of torture in national law is preferred. The main opposing arguments to this interpretation of the UNCAT may be found here, here and here.
The debate concerning the criminalization of torture in domestic law centers on Article 4 of the UNCAT, which imposes on states parties an obligation to “ensure that all acts of torture are offences under [national]…criminal law.” The same obligation also applies “to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.” Moreover, each state party is required to make these offenses punishable by “appropriate penalties” that reflect “their grave nature.”
The CAT has stressed the importance of fulfilling this obligation so as to avoid possible discrepancies between the crime as defined in the Convention and the crime as addressed in national law:
Serious discrepancies between the Convention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity. In some cases, although similar language may be used, its meaning may be qualified by domestic law or by judicial interpretation and thus the Committee calls upon each State party to ensure that all parts of its Government adhere to the definition set forth in the Convention for the purpose of defining the obligations of the State
See Official Records of the General Assembly, Fifty-eighth Session, Supplement No. 44 (A/58/44), chap. III, consideration of reports submitted by States parties under article 19 of the Convention, Slovenia, para. 115 (a), and Belgium, para. 130.
Professor Gaeta, however, appears to disagree in part with the above interpretation, stating: “[S]tates parties, although they are obliged to make acts of torture ‘punishable’, are not also obliged to criminalise in their domestic laws acts amounting to torture as a separate offence under the UN Convention Against Torture.” Phrased differently, Professor Gaeta believes UNCAT does not require state parties to criminalize torture, since states can use other domestic criminal laws to impose punishment for torture. Hence, she concludes that “[i]t is therefore not surprising that some states parties to the UN Convention Against Torture have not (yet) introduced in their legal order a specific crime of torture, arguing that acts amounting to torture are already punishable using charges under other domestic laws.”
Professor Clapham, by contrast, observes that “the special place that torture has in the human rights catalogue (or ‘Decalogue’) suggests that the label of torturer should attach to someone convicted of this offence. Labelling something a human rights crime could have knock-on effects.”
State practice in this regard is inconsistent. Without specifically naming torture, some states, such as Canada, Panama, Ethiopia, and the Netherlands, have introduced legislation on international crimes in which torture is specifically provided for as a war crime and as a crime against humanity. While these states may maintain the obligation in Article 4(1) of UNCAT does not include a specific, separate offense in national criminal law, several other states, most notably Belgium, Colombia, Qatar, Australia, and the Democratic Republic of the Congo (DRC), have provided for a specific offense of torture, distinct from all other offenses, in their domestic laws. The DRC, for example, adopted Law No. 11/008 of 9 July 2011 on the Criminalization of Torture, which introduced an “autonomous offense” of torture in its penal code. Furthermore, in the law’s Preamble, the DRC clearly explains its view of the scope of the Article 4 of the UNCAT, stating that under the UNCAT, it was obliged to criminalize the crime of torture as a specific criminal offense.
I agree with the position of the DRC. There are two reasons why their position reflects the current state of international law. First, by situating Article 4 within the UNCAT’s broader framework, it becomes clear that this provision binds state parties to criminalize in their domestic law the crime of torture. Second, compelling insights have emerged from the Draft Articles on the Prevention and Punishment of Crimes Against Humanity, which the International Law Commission (ILC) adopted on first reading. As it will be demonstrated, from the ILC’s perspective, the obligation set forth by the UNCAT is to criminalize torture as a separate offense in domestic law.
Clarifying the scope of Article 4(1): Views from the ICJ and the ILC
Reading Article 4 in isolation from the other provisions of UNCAT cannot properly capture its full meaning. In accordance with Article 31(2) of the 1969 Vienna Convention on the Law of Treaties, to clarify the scope of obligations arising from Article 4 of UNCAT, one must read this provision in its context, which includes, inter alia, the text of the UNCAT as a whole. First, the reader must identify which provisions of the UNCAT should be read together to form a single source of meaning. In this regard, the ICJ has already laid the groundwork for Article 4. When determining the scope of obligations arising from Article 7(1) of UNCAT, the ICJ found:
The obligation to prosecute…is normally implemented in the context of the Convention against Torture after the State has performed the other obligations provided for in the preceding articles, which require it to adopt adequate legislation to enable it to criminalize torture, give its courts universal jurisdiction in the matter and make an inquiry into the facts. These obligations, taken as a whole, may be regarded as elements of a single conventional mechanism aimed at preventing suspects from escaping the consequences of their criminal responsibility, if proven.
Questions relating to the obligation to prosecute or extradite (Belgium v. Senegal) ¶ 91 (emphasis added).
According to the ICJ, to fulfill the Article 7 obligation to extradite or prosecute, states parties must adopt the necessary national measures to criminalize torture (Article 4) and to establish jurisdiction (Article 5). These are the “basic elements” or “logical prior steps” that lead to the implementation of the aut dedere aut judicare principle with respect to torture. This Latin legal maxim imposes a legal obligation on the states to extradite or prosecute a person found in its territory if the person is suspected of certain crimes. Accordingly, the state having the custody of a suspect has to either extradite the person to another state having jurisdiction over the case or to instigate its own judicial proceedings. The object of the principle is to avoid crimes being left unpunished because there is no extradition or prosecution. Thus, if an alleged offender of foreign nationality comes into a state’s territory and is not extradited to another state, the state must be able to exercise criminal jurisdiction to prosecute the acts of torture that he or she allegedly committed, regardless of where the alleged acts took place or against whom they were perpetrated. When it comes to this obligation, states parties that do not criminalize torture are confronted with two issues. First, there is the problem of classification: states parties cannot establish universal jurisdiction unless they can point to a statutory offense in their domestic law that encompasses the crime of torture. Second, it is unclear which statutory authority may be used to initiate the prosecution of persons who have perpetrated torture elsewhere. This is an important issue, since the obligation to prosecute or extradite is not applicable to all serious offenses—only grave breaches of the four 1949 Geneva Conventions and the 1977 Additional Protocol I. It is also inapplicable to charges under national law like simple assault offenses, abusive treatment or breach of military discipline. Thus, Gaeta’s reading of Article 4 of UNCAT, which asserts that states are not legally obliged to criminalize torture because criminalization can be done by using “other charges” under domestic laws, cannot be supported. As the ICJ acknowledges, the obligation to prosecute or extradite provided for in Article 7 of UNCAT is only applicable to torture. Hence, it is not applicable to these “other charges.” One could say that the obligation to prosecute or extradite is applicable to charge of war crimes if a state chooses to criminalize torture under the latter charge. However, this reading is not without its problems. War crimes that oblige prosecution or extradition are grave breaches, and the grave breaches provisions apply only to international armed conflicts. The other major limitation is that on its face, those grave breaches provisions apply only to “protected persons” under each Geneva Convention and, therefore, do not apply all the time, everywhere, nor necessarily to everyone. Finally, the criminalization of torture under war crimes charges tends to reduce the scope of Article 4 to the context of armed conflict, which is a major element of war crimes. This is a problem because torture is a crime under UNCAT regardless of whether it is committed during an armed conflict or not.
In 2017, the ILC adopted, on first reading, the Draft Articles on the Prevention and Punishment of Crimes Against Humanity as well as the accompanying Commentaries. The ILC had been engaged in the consideration of this topic since 2014, with Mr. Sean D. Murphy as the Special Rapporteur. In addition to Draft Article 6(1) being written in the same manner as Article 4(1) of UNCAT, the ILC’s Commentary on the Draft Articles notes that:
Draft article 6 sets forth various measures that each State must take under its criminal law to ensure that crimes against humanity constitute offences, to preclude certain defences or any statute of limitation, and to provide for appropriate penalties commensurate with the grave nature of such crimes. Measures of this kind are essential for the proper functioning of the subsequent draft articles relating to the establishment and exercise of jurisdiction over alleged offenders.
ILC Commentary on the Draft Articles p. 61, ¶ 1 (emphasis added).
The ILC also observed that if there are discrepancies between the definitions provided for in the future Crimes Against Humanity Convention, and those incorporated in domestic laws, loopholes could be created that could lead to impunity. Therefore, in an effort to avoid such loopholes with respect to crimes against humanity, “draft article 6, paragraph 1, provides that each State shall take the necessary measures to ensure that crimes against humanity, as such, constitute offences under its criminal law.” (Emphasis added.)
Hence, reading Article 4(1) of the UNCAT in light of Draft Article 6(1) on Crimes Against Humanity helps to assert that, from the ILC’s perspective, the obligation set forth by the UNCAT is to criminalize torture as a separate offense in domestic law.
This post analyzed whether the UNCAT obliges states parties to criminalize torture in domestic law. With respect to the scope of the obligation arising from Article 4 of the UNCAT, I disagree with Professor Gaeta. Not only does the UNCAT establish a clear obligation upon states parties to ensure that all acts of torture are offences under their criminal law, this author also contends that Article 4 of the UNCAT obliges states parties to criminalize, in their domestic law, the crime of torture as such.
Ezéchiel Amani Cirimwami is currently completing a joint PhD at the Vrije Universiteit Brussel and the Université Catholique de Louvain on the procedural obligation to extradite or prosecute for core international crimes and the role human rights law plays when considering this obligation. Beginning in March 2019 he will be a visiting researcher at the Max Planck Institute for International, European and Regulatory Procedural Law as part of their Guest Program. In addition, Ezéchiel Amani is a sitting judge in the Democratic Republic of the Congo after having served as a deputy public prosecutor for a number of years.
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