While these passages may be read as providing some support for the appellant’s
case, it is important to bear in mind that neither was addressing the specific question
which arises in these proceedings. The first was addressing the distinct questions of
whether torture under the Convention should include private acts of torture and
whether it should extend beyond acts committed by public officials. The second was
addressing the requirement that torture should be committed for a specific purpose
connected to the actor’s public function. As a result, these passages cast little light
on the meaning of the words “acting in an official capacity”.
34.
The same is true of the following statement by the Chairman-Rapporteur, Mr
J H Burgers in his report of the Working Group dated 25 March 1983 addressing
whether the offence of torture should attract universal jurisdiction:
“Most speakers were in favour of the principle of universal
jurisdiction, holding it to be essential in securing the
effectiveness of the Convention. Territorial jurisdiction would
not suffice to punish torture effectively as a State policy, under
the definition of article 1.” (E/CN.4/1983/63 at para 21)
35.
While these aspects of the travaux preparatoires may be inconclusive as to
the meaning of the words “public official or other person acting in an official
capacity” in article 1, they do, however, cast some light on certain objectives of the
Convention. Two points, in particular, emerge with some clarity.
36.
First, it was the intention that the offence defined in article 1 should not
include purely private acts of torture with no official character or connection. While
the representatives of some States in the Working Group considered that the offence
should not be limited to the conduct of public officials since the purpose of the
Convention was to eradicate any and all activities which result in torture, others
considered that such purely private acts were not matters of particular interest to the
international community and that each State could normally be expected to take
action according to its criminal law against private persons who had committed such
private acts of torture so that there was no need for its regulation by an international
convention. The prevailing view was that acts of torture committed by or under the
responsibility of public officials for purposes connected with their public functions
were different in nature from, and inherently more serious than, those inflicted by a
private person, and that the elimination of the former category of torture should be
the primary target of the Convention. (See Nowak and McArthur, paras 33, 40;
Burgers and Danelius, pp 45, 118-120; E/CN.4/1314, 19 December 1978, para 29.)
Thus, international action was primarily designed to cover situations where national
action was otherwise least likely (E/CN.4/L.170, 12 March 1979, paras 17, 18). To
the extent that the words “a public official or other person acting in an official
capacity” in article 1 were intended to achieve that result, they should not exclude
Page 18
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents