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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