compelling justification for states to accept the presence in an international treaty of
provisions having the effect of diminishing their sovereignty. Such a justification
exists if article 1 is understood as applying to persons exercising official functions
on behalf of the state, or at least acting with its consent or acquiescence, since states
might be reluctant to prosecute such persons for acts committed in the course of their
duties. There would be no reason to apprehend such reluctance, on the other hand,
if torture were committed by persons who were unconnected with the state and had
neither its authority nor consent, nor even its acquiescence.
88.
That is indeed the explanation given in Burgers and Danelius, The United
Nations Convention against Torture - A Handbook on the Convention against
Torture (1988), p 120:
“The problem with which the Convention was meant to deal
was that of torture in which the authorities of a country were
themselves involved and in respect of which the machinery of
investigation and prosecution might therefore not function
normally. A typical case is torture inflicted by a policeman or
an officer of the investigating or prosecuting authority. But
many variations are conceivable. It could be that the torturer is
not directly connected with any public authority but that the
authorities have hired him to help gather information or have
at least accepted or tolerated his act. All such situations where
the responsibility of the authorities is somehow engaged are
supposed to be covered by the rather wide phrase appearing in
article 1: ‘inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in an
official capacity’.”
The two authors were actively involved in the preparation of UNCAT, Herman
Burgers as chairman-rapporteur of the Working Group set up to draw up the text of
the Convention, and Hans Danelius as the author of the initial draft of the
Convention and as an active participant in all sessions of the Working Group.
89.
Other respected experts in this field have also interpreted article 1 as being
confined to situations where the responsibility of state authorities is engaged: that is
my understanding of what is said, for example, in Boulesbaa, The UN Convention
on Torture and the Prospects for Enforcement (1999), pp 27-28; in Gaeta, “When is
the Involvement of State Officials a Requirement for the Crime of Torture?” (2008)
6 JICJ 183, 184 and 190, and in Gaeta and Clapham, “Torture by Private Actors and
‘Gold Plating’ the Offence in National Law: An Exchange of Emails in Honour of
William Schabas”, in de Guzman and Amann (eds), Arcs of Global Justice: Essays
Page 43
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