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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 492 United Nations Convention Against Torture
torture or the respective State and its authorities. Another scope of application
of the savings clause in Article 14(2) is the extraterritorial application of the
right of torture victims to reparation which we will discuss below.

4.6 Universal Civil Jurisdiction for Torture

96 The Convention contains a number of provisions which explicitly relate
to extraterritorial torture as well as a number which confine their operation
to torture within the jurisdiction of the State. One of the central questions
of interpretation in relation to Article 14 is whether the reference to ‘torture’
refers only to torture for which the forum State itself is responsible, or whether
it also includes torture for which another State is responsible, and which took
place outside the jurisdiction of the forum State. Could one interpret Article
14 as requiring States parties to provide the same civil right to redress for tor-
ture which occurs outside its jurisdiction as it is obliged to provide for torture
which is alleged to have occurred within its territorial and other jurisdiction?
97 The drafting history sheds little light on the question as to whether
Article 14 allows for extraterritorial application. The original Swedish draft
contained no express territorial limitation and there was no discussion on the
issue in the 1980 Session of the Working Group. A proposal by the Netherlands
to insert the words ‘committed in any territory under its jurisdiction’ after the
word ‘torture’ in Article 14 was adopted by the Working Group in 1981 and
remained in the draft during the 1982 meeting of the Group.¹⁵¹ However, this
phrase disappeared from the text and neither the travaux nor the commentary
provide any insight as to why it was deleted.¹⁵² On the one hand, it could be
argued that removal of the phrase, albeit, undocumented, was intended to
make clear that the revised version was not territorially limited.¹⁵³ On the

¹⁵¹ Burgers/Danelius, 74.

¹⁵² See above, para. 15.
¹⁵³ According to Byrnes, States parties were unlikely to agree lightly to making their legal sys-
tems, including legal aid, rehabilitation facilities and compensation funds, available to all comers,
and an explicit statement to that effect would be expected if such an obligation were to be imposed.
Furthermore, he argues that the presence of the savings clause in Article 14(2) ‘would seem to sug-
gest that, at most, the drafters did not wish to preclude States from adopting a universal approach
to redress such as that found in the United States’ Torture Victim Protection Act (TVPA)’. Byrnes
points to the analysis of the provision which accompanied President Reagan’s submission of the
CAT to the US Senate in 1988 as well as the US understanding entered to Art. 14 (which had
received no objection from other States at the time) as strong evidence of the view that this was
merely a mistaken omission. See Byrnes, (2001) 543, note 13. See also David P. Stewart, Assistant
Legal Advisor, US Department of State, who testified in 1990 that, during the negotiations on
the CAT, a number of States ‘considered the issue of states establishing civil jurisdiction over acts
that take place abroad and rejected it’. Torture Victim Protection Act of 1989, Hearing before the

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 Article 14. Right of Torture Victims to Adequate Reparation 493
other hand, it could be contended that the territorial limitation was so obvious
that it did not need to be spelled out.
98 Neither does an analysis of the practice of the Committee in the State
reporting procedure provide a clear answer to the question. Prior to May 2005,
the Committee had remained silent when confronted with States’ assertions
that the provisions of Article 14 required no more than the provision of redress
for domestic torture, and that the provision of redress or rehabilitation to vic-
tims of extraterritorial torture remained a matter within their discretion.¹⁵⁴
Where States parties had provided information about the special rehabilita-
tion services provided to victims of torture who have come from abroad, the
Committee has praised such efforts, but has not suggested that the States
concerned were obligated by Article 14 to provide such services.¹⁵⁵ It was
quick to congratulate the United States on the broad legal recourse to com-
pensation for victims of torture, whether or not such torture occurred in the
United States of America, but with an express reference to Article 14(2).¹⁵⁶ In
relation to Canada’s fourth and fifth periodic reports in May 2005, however,
the Committee entered into a dialogue with delegates on the ambit of Article
14 and particularly with regard to the question of State immunity as a bar to
a civil suit for torture committed outside the State. The dialogue took place
subsequent to the 2004 decision in Bouzari v. Islamic Republic of Iran,¹⁵⁷
where a Canadian court found that immunity was a bar to a civil suit for tor-
ture committed outside the State. While there was no specific reference to the
case, the Committee, in its concluding observations, highlighted as a matter
of concern ‘the absence of effective measures to provide civil compensation to
victims of torture in all cases’ and recommended that ‘the State party should
review its position under article 14 of the Convention to ensure the provision
of compensation through its civil jurisdiction to all victims of torture’.¹⁵⁸
While this could provide support for a broader interpretation of Article 14(1),
the Committee did not take the opportunity to clarify the position by, for
instance, ending its expression of concern with the words ‘wherever or by
whomever committed’.

Subcommittee on Immigration and Refugee Affairs of the Senate Committee on the Judiciary, 101st
Congress, 2nd Sess., at 31 (1990).
¹⁵⁴ See e.g. New Zealand, CAT/C/29/Add.4 (1997), §§ 35–40; Germany, CAT/C/29/Add.2
(1997), § 39; United States, CAT/C/28/Add.5 (2000), § 268.
¹⁵⁵ See above, paras. 48–50.
¹⁵⁶ A/55/44, §§ 175–180.
¹⁵⁷ 2004 CanLII 871 (Court of Appeal for Ontario).
¹⁵⁸ CAT/C/CR/34/CAN, §§ 4(g), 5(f).

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 494 United Nations Convention Against Torture
99 Based on the above, we would agree with Parlett¹⁵⁹ that Article 14(1),
in light of the practice, does not impose an obligation to provide a remedy for
torture committed abroad; neither does it prohibit the exercise of jurisdiction
with an extraterritorial element.
100 The inclusion of the savings clause in Article 14(2), according to which
remedies under national law remain unaffected, would seem to indicate that
the drafters of the Convention did not wish to preclude States from adopt-
ing a universal approach to redress such as that adopted by the United States.
The United States has indeed proved fertile ground for civil suits on torture
and other gross human rights violations. Its courts base their jurisdiction on
a generous interpretation of continuing effects (i.e. the victim continuing to
suffer the after-effects of torture while in the United States) and on domestic
legislation. In the landmark case of Filártiga,¹⁶⁰ the Alien Tort Claims Act 1789
was used to allow an alien to sue another alien for damages in a US court for
injuries caused by violations in international law (the torture and murder of a
young Paraguayan who was respectively the son and brother of the plaintiffs).
The case was followed by the passing of the Torture Victims Protection Act
1991.
101 A victim wishing to sue under tort law in the United States faces the
difficulty that the defendant must be in the jurisdiction. There are many other
legal hurdles, even once jurisdiction is established. According to Boyd, about
80 per cent of human rights cases brought under the Alien Tort Claims Act and
Torture Victims Protection Act since 1980 have been dismissed on grounds
such as forum non conveniens,¹⁶¹ act of State, sovereign immunity and other
similar bases.¹⁶²
102 Even more serious obstacles face would-be litigants outside the United
States. Ironically, given its readiness to allow civil suits under domestic legis-
lation, the United States has been one of the strongest voices in denying that
Article 14, which provides for civil remedies, has extraterritorial effect. As
stated above, Article 14 itself is silent on whether or not it should have extra-
territorial application. Looking at the travaux préparatoires, an earlier draft of
the Article did expressly deny extraterritorial effect, but this qualification was
subsequently removed.¹⁶³ On the face of it, the implication seems to be that

¹⁵⁹ Parlett, (2007) 4 EHRLR 385–403

¹⁶⁰ Filártiga v. Peña-Irala, 630 F 2d 876 (CA, 2 Cir. 1980).
¹⁶¹ Under this doctrine, a court stays civil proceedings on the basis that it would be more appro-
priate to pursue the claim elsewhere.
¹⁶² Boyd, (2004) 40 TILJ 1, 1–2. Cited in Donovan/Roberts.
¹⁶³ Discussed in Byrnes (2001), 545–546.

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 Article 14. Right of Torture Victims to Adequate Reparation 495
permissive universal civil jurisdiction was therefore to be allowed. The United
States has argued that the territorial limitation was excluded due to a mere
oversight,¹⁶⁴ and entered a reservation stating that it understood Article 14 to
remain subject to territorial limits (despite itself going further than any other
State in allowing extraterritorial civil suits). Giving the Convention its plain
meaning, however, universal civil jurisdiction is certainly not excluded by the
Convention, and Donovan and Roberts¹⁶⁵ make the point that such an applica-
tion fits the purpose of the Convention, which is to defeat impunity.
103 Given that torture is equally heinous regardless of whether a civil
or criminal remedy is in question, allowing universal criminal jurisdiction
while denying universal civil jurisdiction is arguably rather illogical. Reydams
comments that ‘what applies for criminal jurisdiction applies to some extent
mutatis mutandis for civil jurisdiction, because the latter is considered less
intrusive’.¹⁶⁶ It is less intrusive for three reasons: (i) in civil cases with an extra-
territorial element, the application of foreign law is not excluded; (ii) the host
state is merely an adjudicator rather than actor; (iii) the potential consequences
for the defendant are less severe, ie. damages rather than imprisonment.¹⁶⁷ By
implication, recognizing universal criminal jurisdiction entails recognizing
universal civil jurisdiction, as ‘qui peut le plus peut le moins’.¹⁶⁸
104 Foakes argues to the contrary that universal civil jurisdiction is inher-
ently more intrusive on State sovereignty than criminal, as there is a more
‘restricted level of public authority input’. The ‘reduced degree of State control’
may lead to ‘frivolous or politically motivated claims’ and the risk of ‘multiple
actions in different jurisdictions’.¹⁶⁹ However, courts already have mecha-
nisms to throw out frivolous or vexatious claims and the doctrine of forum non
conveniens allows them to dismiss cases more appropriately heard elsewhere, so
it is suggested that these concerns can be adequately dealt with.
105 The European Commission submitted an amicus brief to the US Supreme
Court in the Sosa case¹⁷⁰ acknowledging that while its existence and scope
remained unclear, universal civil jurisdiction was most appropriately applied
in the category of cases already subject to universal criminal jurisdiction,

¹⁶⁴ Ibid, 548.

¹⁶⁵ Donovan/Roberts, 148.
¹⁶⁶ Reydams, 2.
¹⁶⁷ Ibid, also citing Shelton, 283–284.
¹⁶⁸ Ibid.
¹⁶⁹ Joanne Foakes, ‘State immunity: an update in light of the Jones case’, Contribution to the
Chatham House International Law discussion group on 21 November 2006, available at <http://
www.chathamhouse.org.uk/publications/papers/view/-/id/411, 6>.
¹⁷⁰ Sosa v. Alvarez-Machain, 542 US 692 (2004).

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 496 United Nations Convention Against Torture
in accordance with the rationale that it was necessary to end impunity for
breaches of the most fundamental international norms (which undoubtedly
includes torture). The European Commission also specified that cases should
only be permitted where the claimant would otherwise face a denial of justice
by being unable to bring the case in another State or before an international tri-
bunal.¹⁷¹ In the Sosa judgment, Justice Stephen Breyer commented obiter that
universal criminal jurisdiction ‘necessarily contemplates a significant degree
of civil tort recovery as well’ given that in many States, victims may attach
civil compensation claims to criminal prosecutions. Universal civil jurisdic-
tion should not be perceived as any more ‘threatening’ than universal criminal
jurisdiction.¹⁷²
106 In drafting a Convention on Jurisdiction and Foreign Judgments in
Civil and Commercial Matters, some States at least were strongly in favour of
allowing jurisdiction in respect of ‘a grave violation against a natural person of
non-derogable fundamental rights established under international law, such
as torture . . .’.¹⁷³ In the accompanying narrative,¹⁷⁴ the drafters argue ‘it is
only to be expected that criminal proceedings may be accompanied by civil
proceedings initiated by victims to obtain relief from the person responsible
for the violation’. An alternative variant restricted the exercise of jurisdiction
to cases where the State has established criminal jurisdiction over the relevant
crime and where the claim is for civil compensatory damages for death or
serious bodily injury arising from that crime.¹⁷⁵ This Convention ultimately
proved too controversial for States to reach agreement, and an agreed version
was never finalized. Another opportunity was missed recently to clarify the
relationship between immunity and international human rights norms in the
UN Convention on the Jurisdictional Immunities of States and their Properties,
which is silent on the issue.
107 While there is some evidence that Article 14 can be read as allowing per-
missive universal civil jurisdiction, it must be acknowledged that, with a very
few exceptions, courts have shown marked reluctance to allow such cases.¹⁷⁶
One of the rare examples in which universal civil jurisdiction was allowed is

¹⁷¹ Brief of Amicus Curiae the European Commission at 17–22, Sosa, 542 US 692 (2004). See
also Donovan/Roberts, 147.
¹⁷² Sosa, 542 US 692 (2004), 762–763. Quoted in Donovan/Roberts, 148.
¹⁷³ Hague Conference on Private International Law, Preliminary Draft Convention on
Jurisdiction and Foreign Judgments in Civil and Commercial Matters, Article 18 (3), Oct. 30,
1999. Prel. Doc. No. 11 (August 2000), at <http://www.hcch.net/upload/wop/jdgmpd11.pdf>.
¹⁷⁴ Ibid, 84.
¹⁷⁵ Ibid, 85.
¹⁷⁶ See Byrnes (2001), 538.

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