Taiwan has decided to combat torture and revise its laws to comply with the UN anti-torture framework. A bill on the implementation of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and its Optional Protocol has been adopted by the Executive Yuan and is pending approval by the legislature.
Unlike many treaties that recognize basic human rights and freedoms, UNCAT requires a state to take action and ensure that there is a functioning regulatory framework that criminalizes torture and brings perpetrators to justice. This unique treaty resembles more the UN crime suppression treaties, as one of its main purposes is to investigate all allegations of torture, and prosecute and punish those who are responsible.
Similar to war crimes and crimes against humanity, UNCAT draws on the idea that the perpetrators of torture are hostis humani generis (the enemies of all mankind) who must be brought to justice no matter their whereabouts or nationality.
In other words, regardless of where torture is committed and the nationality of the perpetrators, each country has a duty to take legal action against them once they appear in its territory.
As soon as a foreign torturer sets foot in Taiwan, judicial authorities shall either establish jurisdiction for such a criminal or extradite them to a country that can ensure effective and impartial investigation and prosecution.
Evidently, the commitment of national judicial bodies to investigate and prosecute foreign torturers necessitates a significant level of international cooperation (providing witness testimony, material evidence, etc).
UNCAT recognizes the need for judicial cooperation in criminal matters and in Article 9 calls on states to afford one another the greatest measure of assistance.
However, as the UN does not recognize Taiwan as a sovereign state, international cooperation under universal jurisdiction could be a stumbling block.
With regard to these political constraints, one should bear in mind that the prohibition of torture is a principle of international customary law and the norm to which no derogation is permitted. Therefore, the prosecution of torturers lies in the center of international law and is shared by all members of the international community, including those that stand formally “outside.“
That is also the reason the UN Committee against Torture has reiterated that there should be no “safe haven“ for the perpetrators of torture anywhere in the world.
It could be argued that if a “white spot” appears on the universal anti-torture map, then it is the duty of all to fill it.
One might ask what the implications of UNCAT are: What is Taiwan supposed to do? What should be the response of the international community?
The ball is in Taiwan’s court as the Legislative Yuan should promptly ratify the convention and amend the Criminal Code to define torture as a criminal offense and implement jurisdiction over it.
At the same time, a cross-agency debate on the implementation should be initiated. The responsible stakeholders should not wait for the ratification of the bill, but should start promptly with the necessary changes in legislation and practice.
The Criminal Investigation Bureau, which is responsible for the coordination of the implementation of UNCAT, should initiate such changes, and commission research and analyses on how the universal jurisdiction should be exercised.
Once the convention is ratified and the jurisdiction over torture is clearly established in the Criminal Code, the onus should be placed on the international community, which should be asked to ensure that international cooperation under the principle of universal jurisdiction is effectively exercised.
There is no doubt that compliance with this commitment is a long-term contest and a number of challenges will arise along the way.
Moreover, it is possible that no foreign torturer will ever arrive in Taiwan. However, if this does happen, national bodies and their international counterparts must be prepared for a firm response.
Pavel Doubek is a Czech human rights lawyer and postdoctoral researcher at Academica Sinica’s Institutum Iurisprudentiae.
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