•
The ICJ in the Congo v Belgium case recognised the right of a serving minister of
government to immunity from universal jurisdiction even in respect of accusations of
torture. The decision in this aspect has been much criticised, partly for arguably extending
the immunity of heads of state to other members of government.
•
It may be that in the future an act of torture can never be an official act and will therefore
not be protected by sovereign immunity.
•
States have an obligation under article 4 of CAT to ensure that acts amounting to torture
are rendered criminal under domestic laws. The same applies to attempts to commit
torture and complicity or participation in torture.
•
Article 5 of CAT provides that jurisdiction over torture in terms of article 4 should be
asserted:
(a)
When the offences are committed in any territory under its jurisdiction or on board a
ship or aircraft registered in that state;
•
(b)
When the alleged offender is a national of that state;
(c)
When the victim is a national of that state if that state considers it appropriate.
CAT requires states to assert jurisdiction and submit a person for prosecution, in the cases
contemplated in article 5, when the alleged offender is present within the State and not
extradited for trial in another state (Article 7(1)).
•
Complementing the jurisdiction of national tribunals over international crimes are the
jurisdictions of international courts including the ad hoc tribunals for the former
Yugoslavia and Rwanda and the International Court of Sierra Leone.
•
The 99 states which have ratified the Rome Statute have ‘delegated’ their universal
jurisdiction to the ICC which may prosecute when a state chooses not to exercise its own
jurisdiction to prosecute crimes such as torture as a crime against humanity and as a war
crime.
•
When states are parties to the ICCPR and CAT, additional monitoring powers may be
exercised by the HRC and the Committee against Torture.
•
These bodies may consider individual complaints when the states of which they are a
national have accepted the First Optional Protocols to the ICCPR and made a declaration
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