GUIDE ON ANTI-TORTURE LEGISLATION Madagascar states in article 14 of its anti-torture law that no situation can be invoked to justify torture (be it a state of war, a state of emergency, national necessity, martial law, etc. Article 15 further specifies that an order of a superior officer cannot constitute a defence to torture. 38 In the Philippines, the Anti-Torture Act of 2009 also clearly states that torture is non-derogable: “Torture and other cruel, inhuman and degrading treatment or punishment as criminal acts shall apply to all circumstances. A state of war or a threat of war, internal political instability, or any other public emergency, or a document or any determination comprising an “order of battle” shall not and can never be invoked as a justification for torture and other cruel, inhuman and degrading treatment or punishment“. 39 Sri Lanka also provides in the Convention against Torture Act that “For the avoidance of doubts it is hereby declared that the fact that any act constituting an offence under this Act was committed (a) at a time when there was a state of war, threat of war., internal political instability or any public emergency; (b) on an order of a superior officer or a public authority, shall not be a defence to such offence.”40 Uganda mentions in section 3 of its Prevention and Prohibition of Torture Act that: “Notwithstanding anything in this Act, there shall, be no derogation from the enjoyment of the right to freedom from torture. (2) The following shall not be a defence to a charge of torture (a) a state of war or a threat of war; (b) internal political instability; (c) public emergency; or (d) an order from a superior officer or a public authority.“41 38 39 40 41 4. States parties may consider defining torture to include nonstate and private actors The Committee has clarified what it understands from the article 1 definition and the notions of “public official or anyone acting in an official capacity” (see section 1 on definition of torture). The obligation of the Convention is to criminalise acts of torture that have a nexus with State or quasi-State authorities, which may include when a public official knew or reasonably ought to have known about acts of torture and fails in his or her obligations of due diligence.42 However, some States, when criminalising torture, have decided to also include the possibility of having non-state or private actors, without a nexus to a State or quasi-State entities, as possible perpetrators of torture. States have no obligation to do so but are free to adopt a different definition and different liability, as long as the minimum elements of the article 1 definition and the different modes of liability envisaged by the Convention are included. States that have criminalised torture by private actors have usually provided penalties that are more severe for State actors than private persons (see Brazil in the example below). 38 Madagascar, Loi contre la torture et autres peines ou traitements cruels, inhumains ou dégradants, op. cit. 22, articles 14 and 15. 39 Philippines’ Anti-Torture Act of 2009, op. cit. 4, section 6. 40 Sri Lanka, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Act of 1994, Act N°22 of 1994, article 3, available at http://hrcsl.lk/PFF/LIbrary_Domestic_Laws/ Legislations_related_to_Torture/Convention%20against%20Torture%201994%20of%2022.pdf (last accessed February 2016). 41 Uganda, the Prevention and Prohibition of Torture Act, op. cit. 28, section 3. 42 18 CAT, General Comment N°2, op. cit. 1, § 18.