“… [T]he committee is not an exclusively legal and not an
adjudicative body; its power under article 19 is to make general
comments; the committee did not, in making this
recommendation, advance any analysis or interpretation of
article 14 of the Convention; and it was no more than a
recommendation. Whatever its value in influencing the trend of
international thinking, the legal authority of this
recommendation is slight.”
General Comments of the CAT
42.
The CAT has published four General Comments on UNCAT. In these
proceedings, particular reliance has been placed on General Comment No 2:
Implementation of article 2 by States Parties, 24 January 2008 (CAT/C/GC/2) and
General Comment No 4: Implementation of article 3 of the Convention in the
context of article 22, 4 September 2018 (CAT/C/GC/4).
43.
The appellant submits that the CAT has consistently defined “official
capacity” according to whether the person or entity is carrying out a public function
on behalf of the State. In this regard, she relies, in particular, on the following
passage in General Comment No 2:
“The Convention imposes obligations on States parties and not
on individuals. States bear international responsibility for the
acts and omissions of their officials and others, including
agents, private contractors and others acting in an official
capacity or acting on behalf of the State, in conjunction with
the State, under its direction or control, or otherwise under
colour of law.” (at para 15)
It is, of course, correct that UNCAT is binding on the Contracting States in
international law and that it does not itself impose obligations on individuals. Rather,
it imposes on each State party an obligation to create and enforce in its domestic law
an offence which conforms with the definition in article 1. However, it is not
possible to derive from this the conclusion that torture within article 1 is limited to
conduct attributable to the State as suggested by the appellant. Furthermore, this
passage is not necessarily intended to be an exclusive description of the scope of
article 1.
44.
The appellant also relies on the following passage in General Comment No 4
on the implementation of the non-refoulment obligation in article 3:
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