•
Under international humanitarian law, the involvement of a state official in the process of
torture is not necessary for the offence to constitute torture (see for example Prosecutor v
Kunarac, Kovac and Vukic, Appeals Chamber of the ICTY).
(ix)
the jurisdiction of national and international tribunals to consider cases of alleged
torture and other forms of ill-treatment.
•
Typically, states apply their laws on two primary jurisdictional grounds: nationality of the
accused and the commission of the criminal act within their territory, the so-called
nationality and territorial principles. States generally avoid applying their laws
extraterritorially to acts occurring beyond the limits of their jurisdiction.
•
In addition to these bases of state jurisdiction, international law permits a state to assert
jurisdiction over certain crimes that are considered so heinous that they offend the moral
principles of all humanity, including piracy, slave trading and genocide. Torture attracts
the universal basis of jurisdiction so that any state, regardless of where the criminal acts
took place, or whether they were committed by non-nationals, may prosecute the offence
under its domestic courts.
•
Apart from under international humanitarian law as set out in the four Geneva
Conventions and their Additional Protocols, universal jurisdiction does not exist at
customary international law in respect of other forms of ill-treatment not amounting to
torture.
•
Because universal jurisdiction exists at customary law, universal jurisdiction over acts of
torture does not depend on whether the state of nationality of the accused has ratified
CAT.
•
The ICJ in the Congo v Belgium case, while recognising universal jurisdiction, observed
that states rarely rely solely on universality in practice, preferring to found jurisdiction on
traditional territorial and nationality principles. The Court concluded that states are not
required by customary law to assert jurisdiction. In short, universal jurisdiction is
permissive but not obligatory.
38