Universal Jurisdiction and the Fight Against Torture: Ensuring Accountability Through a Human Rights Centred Approach

Sammanfattning: Within international human rights law, the prohibition of torture is absolute and uncontroversial. However, despite considerable efforts to end it, torture remains a pervasive problem all over the world, in part due to the widespread impunity for such acts. Many have hence identified universal jurisdiction as one of the ways whereby accountability for torture may be enhanced. The present thesis examines universal jurisdiction in the light of existing state obligations related to torture under international human rights law. It hereby adopts an approach which transcends strict regime demarcations, by considering universal jurisdiction, which is typically invoked in an international criminal law ambit, from a human rights perspective and by assessing its value in the realm of state obligations in the fight against torture. The thesis argues that there exists a paradox in the relationship between the struggle against torture in international human rights law, which is built on state obligations, and the traditional understanding of universal jurisdiction, which is typically considered an entitlement, rather than an obligation, of states. The thesis therefore aims, firstly, to problematize the current paradoxical understanding of universal jurisdiction in association with crimes under international law, with a specific focus on acts of torture; and secondly, it seeks to construct a human rights centred understanding of universal jurisdiction in an attempt to begin to resolve the paradox. This is done through an examination of positive state obligations to end impunity for torture in general international human rights law; the principle of universal jurisdiction as traditionally understood and as enshrined in customary international law; relevant provisions of the United Nations Convention Against Torture; and the right to an effective remedy for victims of torture offences. The thesis concludes that universal jurisdiction is traditionally considered to be a state entitlement, rather than an obligation. In relation to torture, the UN Convention Against Torture however prescribes the assertion and exercise of primary, compulsory universal jurisdiction over torture offences when the suspect is physically present within the territory of a States Party to the convention. Under international human rights law, victims of torture enjoy the right to an effective remedy, which includes individual rights to e.g. investigation, access to justice and reparation for the harm suffered. A human rights centred approach to universal jurisdiction must therefore be based on state obligations to exercise universal jurisdiction in certain situations and be in accordance with states’ existing human rights obligations to respect, protect and fulfil the rights of everyone within their jurisdiction. In the future, the principle of universal jurisdiction, which today suffers from serious ambiguity and controversy, needs to be governed by a clear legal framework which defines the concept itself, its legal limits and the situations in which its application is compulsory, so as to strengthen the international rule of law and limit both over and under-extension of jurisdiction. Considering the importance of human rights protection in the system of international law, the only way to ensure the legitimacy of such a framework is to place human rights at its center.