parties that are willing to prosecute them (aut dedere aut
iudicare). … While the enforcement of these norms is
dependent on domestic legal systems either prosecuting or
extraditing accused persons, various treaty bodies - such as the
Committee against Torture - often play an important role in
monitoring the implementation of the treaty norms at the
domestic level. (James Crawford, Brownlie’s Principles of
Public International Law, 9th ed (2019), p 663.)”
It can be seen therefore that the object of UNCAT has been to make torture as
defined in article 1 a criminal offence of universal jurisdiction enforceable by
domestic courts and, by virtue of very extensive State participation in the
Convention, to establish a machinery capable of reducing the likelihood of
perpetrators of “official torture” escaping justice before national courts.
28.
Article 1 of UNCAT therefore defines a criminal offence which contracting
States are required to criminalize and punish within their respective legal systems.
The fact that UNCAT is a human rights treaty imposing obligations in international
law on the contracting States is not a good reason for limiting the scope of that
offence to conduct attributable to the State itself. It does not follow that the reference
in the Convention to public officials and those acting in an official capacity must be
taken to refer to State actors as opposed to non-State actors.
Travaux preparatoires
29.
We have been referred by the parties to records of the drafting history of
article 1, UNCAT and to commentaries on the Convention, including Burgers and
Danelius (above) and Nowak and McArthur, Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (OUP, 2008). Both parties
submit that these materials are admissible as a supplementary means of
interpretation under article 32, Vienna Convention on the Law of Treaties and
support their respective interpretations of the words “a public official or other person
acting in an official capacity” in article 1, UNCAT.
30.
The UN Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted by General Assembly resolution 3452 (XXX) of 9 December 1975 (the
“1975 Declaration”) defined “torture” in article 1 in terms which required that it be
inflicted by or at the instigation of a public official. By Resolution 32/62 of 8
December 1977, the UN General Assembly requested the Commission on Human
Rights to draw up a draft convention against torture. The Commission examined the
matter at its 34th session and invited comments on the draft articles from the
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