alleged to control defined territory, control populations within
its power, and to have entered into agreements with other
governments. It has a president, a legislature, and its own
currency. These circumstances readily appear to satisfy the
criteria for a state in all aspects of international law. Moreover,
it is likely that the state action concept, where applicable for
some violations like ‘official’ torture, requires merely the
semblance of official authority. The inquiry, after all, is
whether a person purporting to wield official power has
exceeded internationally recognized standards of civilized
conduct, not whether statehood in all its formal aspects exists.”
67.
On behalf of the appellant it is submitted that the Court of Appeals here
placed considerable emphasis on the need for the entity under consideration to
possess significant State-like qualities. Moreover, it is said that the State-like
qualities possessed by Srpska were of a considerably different order from those of
NPFL as it existed during the relevant period of 1990 in Liberia. However, in
common with most of the other US authorities relied on by the appellant, Kadic
concerns the distinct question of actionability under ATCA. Furthermore, to the
extent that it may be relevant, Kadic, notwithstanding the use of the language of
statehood, does not support the appellant’s reading of article 1, UNCAT. On the
contrary, the Court of Appeals apparently considered that official torture required
“merely the semblance of official authority” and could be committed by “a person
purporting to wield official power” who had exceeded internationally recognised
standards of civilised conduct. In the result, the conduct of a de facto governmental
authority was held to constitute official torture.
68.
The same is true of a further US decision on which the appellant relies,
Mehinovic v Vuckovic, 198 F Supp 2d 1322 (2002) (US District Court, N D Georgia,
Atlanta Division). The plaintiffs sued a former soldier in the Bosnian Serb Army
alleging, inter alia, acts of torture. The District Court held that it had jurisdiction
under both ATCA and TVPA. With regard to ATCA, it noted that official torture
violated obligatory norms of customary international law and, after referring to the
definition in article 1, UNCAT observed that
“… the beatings carried out by Vuckovic and his accomplices
were clearly perpetrated, instigated, and acquiesced in, by
persons acting in an official capacity as part of the police or
military forces of Republika Srpska.” (at p 1346)
The appellant relies in particular on the following passage:
Page 33
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