in Honour of William Schabas (2018), p 290; and, perhaps most emphatically, in
O’Keefe, International Criminal Law (2015), Part Two, para 7.121.
90.
Fourthly, it is apparent that while many states parties, including the United
Kingdom, have followed the wording of article 1 when implementing UNCAT in
their domestic law, there are also states which have adopted a definition based on
the understanding that article 1 is confined to situations where the responsibility of
state authorities is engaged. Examples include Norway (where section 174 of the
Penal Code of 2005 imposes liability on “any public official”, defined as “any
person in central or local government service, or engaged by central or local
government to perform a service or work”), Spain (where article 174(1) of the
Criminal Code provides that “torture is committed by the public authority or officer
who, abusing his office …”). Turkey (where article 94(1) of the Criminal Code
imposes liability on “any civil servant …”; article 94(4) imposes an ancillary
liability on “any other person found to have participated in this offence”, who “shall
be subject to the same punishment as the civil servant”). The implication of the
respondent’s argument is that those states parties have failed to implement UNCAT
correctly. Counsel for the respondent emphasised that Austria, whose
representatives had proposed the wording adopted in article 1, provides in the
relevant provision of its Criminal Code (section 312a) that “public officials within
the meaning of this provision shall also be those who, in the event of the absence or
default of the public authorities, are effectively acting as officials”. What is of
greater interest, however, is that this provision was only introduced in 2013. Is it to
be inferred that, until then, Austria had failed to implement correctly a provision of
UNCAT which had been adopted at its own suggestion?
91.
Fifthly, an interpretation of article 1 which confined it to situations where the
conduct was the responsibility of the state was consistently adopted by the United
Nations Committee Against Torture in its decisions prior to about 2003. In GRB v
Sweden, Communication No 83/1997, 15 May 1998, para 6.5, the Committee stated:
“The Committee considers that the issue whether the State
party has an obligation to refrain from expelling a person who
might risk pain or suffering inflicted by a non-governmental
entity, without the consent or acquiescence of the Government,
falls outside the scope of article 3 of the Convention.”
The Committee went somewhat further in Elmi v Australia, Communication No
120/98, 14 May 1999, para 6.5, but in circumstances where there was no functioning
state:
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