Research Handbooks in International Law series
Edited by Alexander Orakhelashvili
Chapter 13: Torture, jurisdiction and immunity: theories and practices in search of one another
That the prohibition of torture has attained the status of a peremptory norm of international law has been beyond question for some time. The torture victim’s right to civil redress is also generally uncontroversial and widely recognized in international law, as well as in the domestic law of certain states, either through specific legislative schemes,the general law of torts or obligations and, in many civil law countries, through the normal operation of the criminal law. More controversial, however, is the scope of the adjudicative jurisdiction of national courts with respect to civil claims for torture. It has been contended, at least since the 1990s, that national courts have the jurisdiction to adjudicate civil claims for torture, even in circumstances when the alleged torture has occurred in another country, that is to say, outside the territorial jurisdiction of the forum. More specifically, it has been argued that the universal criminal jurisdiction to prosecute individual torturers entails the recognition of a corresponding principle of universal civil jurisdiction to hold states and their functionaries liable for torture. A related question is whether this putative universal civil jurisdiction with respect to torture, like its criminal counterpart, is inimical to the application of immunities. The idea that the peremptory prohibition of torture has given rise to a type of universal civil jurisdiction has found some acceptance in the literature, but does not yet form part of the mainstream.
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