THE CASE OF HENRY DOWA incorporated into the law applicable in Kosovo.29 This was recorded in the dossier sent to Michael Steiner, the SRSG and Head of UNMIK, in late May 2003, which he received early in June. Interestingly, it was only in September 2003 that the Secretary-General himself acknowledged that CAT “is part of the applicable law in Kosovo.”30 Before that the SRSG had referred merely to “the importance of the principles enshrined in [CAT],” without any reference to the clear legal obligations arising from it.31 The obligation to ensure that alleged torturers are brought to justice Dowa allegedly committed torture in Zimbabwe, not in Kosovo. As a result, the aspects of CAT which incorporate the concept of aut dedere aut judiciare - the duty to extradite or prosecute - were central to the UN’s duty. In the broad sense that was to ensure that the alleged perpetrator faced justice: as the preamble says, inter alia, CAT’s purpose is “to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world” (emphasis added). CAT expressly provides that: “Each State Party shall…take such measures as may be necessary to establish its jurisdiction over [the alleged offender] in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him…”32 This is supported by the further provision that: “The State Party in the territory under whose jurisdiction a person alleged to have committed any offence [of torture] is found shall in the cases contemplated in Article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”33 This obligation under CAT for a State to ‘extradite or prosecute’ (aut dedere aut judiciare) is clear.34 It is a reflection of the prohibition against torture having attained the status of jus cogens, the highest status in international law.35 Torture is internationally recognised as so heinous a crime that all courts are competent to hear the case, jurisdiction being based on the nature of the act rather than on connections to 29 UNMIK/REG/1994/24 of 12 December 1999 on the Law Applicable in Kosovo. In a letter to REDRESS dated 19 September 2003, written on the Secretary-General’s behalf by JeanMarie Guehenno, Under-Secretary-General for Peacekeeping Operations, UN Department of Peacekeeping Operations (DPKO) in New York. See below page 11 et seq. 31 In a letter to REDRESS dated 3 July 2003. See below page 9. 32 Article 5(2). 33 Article 7(1). 34 The obligation under CAT to ‘extradite or prosecute’ was clearly confirmed by the House of Lords in ‘Pinochet (No.3)’: “If the states with the most obvious jurisdiction…do not seek to extradite, the state where the alleged torturer is found must prosecute or, apparently, extradite to another country” – per Lord BrownWilkinson in R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (24 March 1999) [1999] 2 WLR 827, p. 841. 35 The term jus cogens is defined in Article 53 of the 1969 Vienna Convention on the Law of Treaties as: “…a peremptory norm of general international law…[that is] accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” 30 7