25. International treaty bodies have also presumed a State will have authority and
control in situations of military occupation and therefore its human rights
obligations apply.173
D. Accountability of Non-State Actors
26. Technically, human rights obligations only attach to States. Human beings are
the beneficiaries of human rights and States parties have the corresponding
obligation to guarantee the rights contained in human rights treaties. So, for
example, Article 1 of the UNCAT defines torture as acts of ‘severe pain or
suffering’ if ‘by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity’.174
27. It is incumbent, therefore, upon the State to have in place comprehensive laws,
both criminal and civil to deal with the consequences of acts of private
individuals as well as to protect from it. Failure to have in place such provisions
would be a violation of human rights obligations imposed upon the State.
28. Acts carried out by private individuals, including, for example, terrorism will by
definition also amount to the commission of an offence and, as such, the
perpetrators can be prosecuted under domestic criminal law and any other
appropriate domestic laws. As the enforcement mechanisms of international
human rights treaties only apply to State parties, the reality is that there are no
procedures in respect of non-State actors. Outside of international criminal law
and the Rome Statute creating the International Criminal Court, there are no
means, as a matter of international human rights law, to establish that a nonState actor has violated human rights. Therefore paramilitary organisations, or
terrorist groups cannot be held to account, internationally, for violation of
human rights standards.
29. The circumstances where a State can be held responsible for a human rights
violation committed by a non-State actor are as follows:
where the State has privatised State activity or the State permits that activity
to be carried out in the private sector, the State can be held accountable for
violation of human rights under those circumstances.175
where a violation of human rights occurs between two private individuals,
the State cannot escape its liability in connection with those violations, if the
laws governing the activity that caused the violation are inadequate.176
State responsibility will also arise when national authorities ‘fail to take
appropriate measures or to exercise due diligence to prevent, punish,
173
ICJ, Democratic Republic of Congo v Uganda, para 216; ICJ, Advisory Opinion on the Wall, para
78. African Commission, Communication 227/99, DRC v Burundi, Rwanda and Uganda, 29 May 2003,
paras 79-80.
174 See also Human Rights Committee, General Comment No.31, CCPR/C/21/Rev.1/Add/13 (2004),
para 8.
175 European Court, Costello Roberts v UK, 25 March 1993; also E/CN.4/2005/7, 22 December 2004.
176 European Court, MC v Bulgaria, 4 December 2003; also A v UK, 23 September 1998.
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