refer can be said to provide some support for the interpretation for which the
prosecution contends.
33.
Mr Powles also relies on passages in Burgers and Danelius concerning the
drafting history in support of his reading of article 1.
“There were different opinions on the question as to whether or
not the definition of torture in the convention should be limited
to acts of public officials. It was pointed out by many States
that the purpose of the convention was to provide protection
against acts committed on behalf of, or at least tolerated by, the
public authorities, whereas the State could normally be
expected to take action according to its criminal law against
private persons having committed acts of torture against other
persons. However, France considered that the definition of the
act of torture should be a definition of the intrinsic nature of the
act of torture itself, irrespective of the status of the perpetrator.
Although there was little support for the French view on this
matter, most States agreed that the convention should not only
be applicable to acts committed by public officials, but also to
acts for which the public authorities could otherwise be
considered to have some responsibility.” (Burgers and
Danelius (above) at p 45, original emphasis)
In a further passage, Burgers and Danelius state:
“In principle, the common element of the purposes referred to
in the definition should rather be understood to be the existence
of some - even remote - connection with the interests or policies
of the State and its organs. It is important to note, in this
context, that the primary objective of the Convention is to
eliminate torture committed by or under the responsibility of
public officials for purposes connected with their public
functions. Precisely because the public interest is sometimes
seen in such cases as a justification, the authorities may be
reluctant to suppress these practices. The provisions of the
Convention are intended to ensure that torture does not occur
in such cases or that, if it occurs, action is taken against the
offender.” (Burgers and Danelius (above), at pp 118-119)
Page 17
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