degree of actual control of an area and that it exercised the type
of functions which a government or governmental organisation
would exercise? It seems to me that I have to take care not to
impose Western ideas of an appropriate structure for
government, but to be sensitive to the fact that in countries such
as Afghanistan different types of structure may exist, but which
may legitimately come within the ambit of an authority which
wields power sufficient to constitute an official body.” (at para
33)
He rejected a submission, based on Elmi, that the mere fact that there is a central
government in existence precludes there being a de facto authority of which a person
might be a public official or on whose behalf a person might act in a similar capacity.
He considered that the words “person acting in a public capacity” included those
acting for an entity which had acquired de facto effective control over an area of a
country and was exercising governmental or quasi-governmental functions in that
area. In his view, there was material on which a jury could conclude that Zardad was
such a de facto public official in an area totally controlled by his organisation which
exercised, with a degree of permanence, functions which would be functions of a
state authority (at paras 34-38).
64.
Mr Powles submits that Zardad is wrongly decided. However, I find the
approach of Treacy J compelling and in conformity with the preponderant weight of
material relevant to the interpretation of article 1, UNCAT.
65.
Zardad is also instructive as to which features are indicative of governmental
activity. There, in support of its contention that Zardad should be treated as a public
official on a de facto basis, the prosecution maintained that Zardad was akin to a
Military Governor in control of a province and that he was, accordingly, to be
regarded as a quasi-official and amenable to the provisions of section 134 CJA.
Treacy J drew attention, inter alia, to Zardad’s admission that he was a general
within Hekmatyar’s army (Hekmatyar being the leader of the Hezb-I-Islami
faction), which controlled the Sarobi area, and to the clear command structure within
that force. The judge referred to the fact that prisons within the controlled area were
run by Hezb-I-Islami which was the only law enforcement authority in the area and
to the role of Hezb-I-Islami and Zardad personally in arresting and imprisoning
lawbreakers and in mediating and resolving disputes between individuals.
Representatives of international organisations and aid agencies would make
representations to Zardad, as opposed to any central government authority, if
equipment was seized or delayed at any of the checkpoints for which Zardad’s force
was responsible. Those who complained of ill-treatment, torture and hostage taking
regarded Zardad and Hekmatyar as the only official authority in the area which was
dominated and controlled by them. Against this background Treacy J concluded:
Page 31
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