CONCURRING OPINION OF JUDGE ZUPANČIČ

I concur with the majority’s opinion in this case.

Here, I simply offer another example illustrating the appropriateness of the majority’s decision, namely a pertinent comparison deriving from a positive and recent source of public international law.

Article 9 of the United Nations Convention against Torture [Kuwait is a signatory to CAT (“With reservations [only] as to Article 20 and the provision of paragraph 1 from Article 30 of the Convention”) as of 8 March 1996, as is the United Kingdom, as of 15 March 1985; it ratified CAT on 8 December 1998. For other details see, for example, http://www.un.org/Depts/Treaty] (“CAT”) provides as follows:

States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in Article 4 [Article 4 of CAT: “Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”], including the supply of all evidence at their disposal necessary for the proceedings.

States Parties shall carry out their obligations under paragraph 1 of this article in conformity with any treaties on mutual judicial assistance that may exist between them.” [Emphasis added]

There is a striking difference in CAT between the strict and compulsory provisions concerning the enforcement of criminal law’s (substantive and procedural) proscription of torture as a criminal offence and the above rather muted provision of paragraph 1 of Article 9.

Another remarkable clause of CAT is Article 5 which provides:

“1. Each State Party shall take such measures as may be necessary to establish its [criminal] jurisdiction over the offences referred to in Article 4 in the following cases:

(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. [This is the criminal aspect of the situation in the present case. Clearly, CAT does not require the State Party  (here the United Kingdom) to establish even criminal jurisdiction in such a case. It leaves it to its discretion. The compelling reasons for discretionary exclusion of criminal jurisdiction apply a fortiori to the issue of civil jurisdiction. Hence, the cited provision of Article 9, § 1, supra ] [Emphasis added]

2. Each State Party shall likewise take such measures as may be necessary to establish its [criminal] jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.”

Evidently, the rationale for the apparent lack of severity of CAT concerning jurisdiction, criminal and civil, does not derive from the lofty principles that had most certainly guided the drafters of CAT, otherwise a superb legal instrument. On the contrary, this jurisdictional lack of severity – concerning the auxiliary extension of civil jurisdiction over acts of torture – runs contrary to the fundamental objectives of the Convention against Torture.

We may rest confident that the drafters of CAT did their utmost legally to eradicate the disgrace of torture, that is, to make it prosecutable and litigable ubiquitously and to the greatest possible extent. However, the drafters of CAT also felt constrained, not by theories of sovereign immunity etc., but by practical considerations . I feel constrained by exactly the same realistic considerations.

Ex factis jus oritur .

The rationale elucidated by Judge Pellonpää in his separate opinion, with which I wholly concur, illustrates how true this is, especially about international law.

Given the hindering effect of these “facts” which, incidentally, call for the continued significance of the long-established branch of law described as “private international law” or “conflict of laws” – nothing further needs to be said about the above-mentioned realistic considerations.