Appeal’s formulation, however, the adjective “purported” has been transposed so as to refer to the function being exercised by the organisation or body. This is an error as the functions being exercised by the organisation or body must be governmental in character. Purporting to exercise such functions would not be sufficient. 78. Thirdly, the exercise of a governmental function must be distinguished from purely military activity not involving any governmental function. I note that, in this regard, Treacy J in Zardad distinguished governmental functions from “the activities of a rebel faction which has not acquired a sufficient degree of control, permanence, authority or organisation to fulfil criteria sufficient for it to be recognised as an authority wielding official or quasi-official powers” (at para 36). However, insurrectional forces engaged in fighting the forces of the central government of a State may nevertheless exercise sufficient governmental authority over territory and persons under their control for acts done on their behalf to be official acts for this purpose. Thus, in Zardad the area controlled by Hezb-I-Islami was controlled essentially by military force but the group also exercised governmental functions. The failure to take account of the distinction between governmental and military activity leads me to the view that the formulation adopted by Sweeney J in the present case - “in situations of armed conflict, … individuals who act in a non-private capacity and as part of an authority-wielding entity” - is too broad. It is also necessary to bear in mind that there are circumstances in which torture might constitute a crime against humanity or a war crime contrary to UK law, whether or not performed by a public official or a person acting in an official capacity. However, for reasons explained at para 20 above, that is not so with regard to the alleged facts in the present case. 79. Fourthly, it is necessary to say something about what may be the indicative features of governmental authority in any particular case. I consider that Treacy J in Zardad correctly identified the required approach when he observed that it is necessary to look at the reality of any particular situation and to consider whether, at the relevant time, the entity in question had a sufficient degree of organisation and actual control over an area and whether it exercised the type of functions which a government or governmental organisation would exercise. This will require examination of evidence as to the position on the ground. In doing so it will be necessary to make allowance for the particular conditions which may make administration difficult and for different views of appropriate structures of government. The question will be whether the entity has established a sufficient degree of control, authority and organisation to become an authority exercising official or quasi-official powers, as opposed to a rebel faction or a mere military force. The one reservation I have about the approach of Treacy J. in Zardad is his view that the entity would be required to establish itself with a degree of permanence. This, it seems to me, is likely to be a flexible concept and the fact that the long-term survival of an entity may be an unlikely prospect should not prevent it from being considered a de facto government provided that it has effectively Page 39