the State.36 All States have a clear obligation to prevent impunity for such crimes, and
to ensure that all alleged perpetrators are tried and punished regardless of where the
torture occurred.
There was therefore no doubt that the Kosovo courts, under the authority of UNMIK,
had jurisdiction over Dowa in regard to the allegations of torture in Zimbabwe. It was
clear from the affidavits of the victims presented to UNMIK that he was specifically and
directly implicated in several serious allegations of torture, and that there was no
prospect of an impartial prosecution in Zimbabwe. All of this, together with supporting
medical and other background evidence, constituted a strong prima facie case of Dowa
having perpetrated acts of torture in 2001 and 2002, including electric shock torture and
beatings on the bare soles of the feet (falanga). The dossier also recorded that the
victims were willing and able to travel to Kosovo to give oral evidence and/or to assist
the authorities there in any way, including identifying the suspect.
In the circumstances CAT provides:
“Upon being satisfied, after an examination of information available to it, that the
circumstances so warrant, any State Party in whose territory a person alleged to
have committed any offence [of torture] is present, shall take him into custody
or take other legal measures to ensure his presence. The custody and other
legal measures shall be as provided in the law of that State but may be
continued only for such time as is necessary to enable any criminal or extradition
proceedings to be instituted.”37
Furthermore:
“Such State shall immediately make an inquiry into the facts.”38
Although it was no doubt obvious, REDRESS explicitly advised UNMIK that it was
extremely likely that Dowa would seek to avoid being held accountable by asking his
government to remove him urgently to the safety of Zimbabwe, and that even if he
didn’t specifically request this the Zimbabwe government would endeavour to recall him
to avoid the political and diplomatic embarrassment of him being investigated and
prosecuted externally for alleged torture committed in Zimbabwe.39
UNMIK was therefore requested to take all appropriate measures in terms of CAT to
secure Dowa’s continued presence within the jurisdiction, to conduct a full investigation
with a view to prosecution (in the absence of a bona fide extradition request), and,
36
See Reparation: A sourcebook for victims of torture and other violations of human rights and international
and humanitarian law, REDRESS Trust, London, March 2003, page 26, especially footnote 103,
http://www.redress.org There is a growing international legal literature on universal jurisdiction: see
www.u-j.info There is no dispute as to its specific incorporation into CAT: see ‘Pinochet (No. 3)’ (supra).
37
Article 6 (1).
38
Article 6 (2).
39
Perhaps equally obviously, UNMIK was told that the Zimbabwe government would not wish Dowa’s
conduct to be the subject of proceedings, as any such proceedings would in turn directly expose the
government to further international scrutiny and criticism for its appalling human rights record.
8
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