Panel 1: Are Adequate Legal Frameworks in Place at the Domestic Level?Torture as a Specific Criminal Offense in Domestic Laws

the main “evidentiary basis” for my remarks, which has been made available to conference ParticiPants, includes an academic study of decisions of the committee against torture under relevant provisions of the UN Convention,1 as well as excerpts from the other relevant jurisprudence and treaties to which I will be referring. The topics I will address are: first, where does the obligation to make torture a specific offense in domestic law come from? Second, what is the scope of jurisdiction that has to be established for that offense in domestic law? Third, a description of ancillary obligations designed to ensure that torture is criminalized in practice, including mandatory investigation and arrest, as well as prosecution and extradition. In terms of the obligation itself, and the sources of the obligation, the first and perhaps oldest source is the 1949 Geneva Conventions. As you probably know, each of the Geneva Conventions includes provisions on “grave breaches.”2 Among other things, “torture” and “inhuman treatment” of prisoners, and “unlawful confinement” of civilians, are covered by those grave breaches provisions. The Conventions require that alleged perpetrators of “grave breaches” be searched for by the state, and then (in a manner that, as we will see, is similar to that eventually enacted for “torture” under the UN Convention against Torture) requires that they are either prosecuted or extradited. On the plus side, the Geneva Conventions have essentially been ratified by every country in the world. So in that sense, they are a good source. On the other hand, on their face, the grave breaches provisions only apply to international armed conflicts. Now, as regards non-international armed conflicts – whether as interpreted under U.S. Supreme Court decisions in this country or otherwise – there are other arguments for criminalization of torture under international humanitarian law in those contexts.3 But the other major limitation is that on its face, again, those grave breaches provisions apply only to the “protected persons” under each Convention, and you have to look under the Convention for the definition.4 So, as a source of obligation, the Geneva Conventions do not apply all the time, everywhere, and they do not necessarily apply to everyone. The relevant part of Article 7 of the International Covenant on Civil and Political Rights simply states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The Human Rights Committee established under the treaty has, however, interpreted that provision as incorporating a requirement to bring perpetrators to justice.5 In fact, in Panel 1: Are Adequate Legal Frameworks in Place at the Domestic Level?