Prosecuting International Crimes in Africa - PULP - University of ...

18 Chapter 1
namely, national, ethnic, racial, or religious. 39
4.1.3 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
The Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment (Torture Convention) 40 imposes an
unequivocal duty on state parties to prosecute acts it defines as criminal. 41
It requires each state party to ensure that all acts of torture are criminalised
under its municipal laws, 42 and to establish its jurisdiction over such
offences in cases where, inter alia, the alleged offender is its national. 43
Article 7 requires state parties either to prosecute or extradite alleged
offenders. 44 Because of this latter requirement several commentators have
argued that the Torture Convention ‘does not explicitly require that a
prosecution takes place, let alone that punishment be imposed and
served’. 45 On the contrary, this formulation was designed to ensure that
‘no offender would have the opportunity to escape the consequences of his
acts of torture’. 46
39 The part interestingly does not include political groups. This was due mainly to the fact
that the Convention was negotiated during the Cold War, when the Soviet Union and
other totalitarian governments feared that they would face interference in their internal
affairs if genocide were defined to include acts committed to destroy political groups.
According to Kuper, ‘one may fairly say that the delegates, after all, represented
governments in power, and that many of these governments wished to retain an
unrestricted freedom to suppress political opposition’ Kuper (n 34 above) 30.
40 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, UN Doc A/39/51, entered into force 26 June 1987, article 4.
41 Similarly, articles 6 and 12 of the Inter-American Convention to Prevent and Punish
Torture (OEA/ser A /42 (1986), entered into force 1987) require state parties to
criminalise torture and to punish violations.
42 Art 1 defines ‘torture’ as ‘any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from him or
a third person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or coercing
him or a third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It does
not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions’.
43 Art 5 Torture Convention. Art 4 requires parties to criminalise acts which ‘constitute
complicity or participation in torture’.
44 In the view of the drafters of the Torture Convention, ‘in applying article 4 (which
requires states to make torture ‘punishable by appropriate penalties which take into
account their grave nature,’) it seems reasonable to require that the punishment for
torture should be close to the penalties applied to the most serious offences under the
domestic legal system’. See JH Burgers & H Danelius The United Nations Convention
against Torture: A handbook on the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (1988) 129.
45 See Orentlicher (n 3 above) 2604.
46
Report of the Working Group on a Draft Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 36 UN ESCOR Comm’n on Hum
Rts 11 para 61, UN Doc E/CN 4/1367 (1980). In contrast to the analogous provision
in the Genocide Convention, the duty established by art 7 was understood to be a
practical and effective means of suppressing torture. This much is evident both from