Article 1. Definition of Torture 61 substantial risk of being subjected to torture by the ruling Hawiye clan, constituted a violation of the prohibition of refoulement pursuant to Article 3. The Committee found a violation of Article 3 and explicitly rejected the argument of the Australian Government that the acts of torture the applicant feared he would be subjected to in Somalia would not fall within the definition of torture set out in Article 1. The Committee has noted that since Somalia has been without a central Government for years and a number of warring factions de facto exercise prerogatives that would normally be practised by legitimate Governments, the members of these factions could fall within the phrase ‘public officials or other persons acting in an official capacity’ contained in Article 1, according to the Committee.222 127  The Committee has repeatedly criticized States parties that have not criminalized torture 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.223 In its Concluding Observations to Kazakhstan the Committee has expressed its concern that the definition does not encompass acts of torture committed by any ‘other person acting in an official capacity’ and has held that this might lead to impunity.224 In the Concluding Observations to Morocco, the Committee criticized that the definition of torture included in the Criminal Code does not encompass complicity or explicit or tacit consent of law enforcement, security staff, or any other person acting in an official capacity.225 The Committee voiced its concern regarding Chinese legislation that restricts the prohibition of torture to the actions of judicial officers and officers of an institution of confinement, but does not cover acts by ‘other persons acting in an official capacity’, including those acts that result from instigation, consent, or acquiescence of a public official.226 3.1.6.3 Meaning of ‘instigation’, ‘consent’, and ‘acquiescence’ 128  The term ‘instigation’ means incitement, inducement, or solicitation and as such requires the direct or indirect involvement and participation of a public official.227 The terms ‘consent or acquiescence’ are, however, much broader and in fact can be interpreted to cover a wide range of actions committed by private persons if the State in some way or another permits such activities to continue.228 The Committee has underlined that States parties have an obligation to adopt effective measures to prevent ‘public authorities and other persons acting in an official capacity from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture’.229 129 In the US ‘understanding’, the term ‘acquiescence’ requires that ‘the public official, prior to the activity constituting torture, have awareness of such activity and 222   SS Elmi v Australia, No 120/​1998, UN Doc CAT/​C/​22/​D/​120/​1998, 14 May 1999, para 6.5. See also below Art 3 § 131, which refers to cases where the Committee accepted claims under Article 3 CAT involving the risk of torture by non-​State actors, where the state failed to exercise due diligence in preventing and stopping abuses by private actors. These cases are Eveline Njamba et al v Sweden [2010] CAT No 322/​2007; EKW v Finland, No 490/​2012, UN Doc CAT/​C/​54/​D/​490/​2012, 4 May 2015; Sylvie Bakatu-​Bia v Sweden, No 379/​ 2009, UN Doc CAT/​C/​46/​D/​379/​2009, 3 June 2011. 223  CAT, ‘Concluding Observations:  Bosnia and Herzegovina’ (2011) UN Doc CAT/​C/​BIH/​CO/​2-​5, para 8. 224   CAT, ‘Concluding Observations: Kazakhstan’ (2014) UN Doc CAT/​C/​KAZ/​CO/​3, para 24. 225   CAT, ‘Concluding Observations: Morocco’ (2011) UN Doc CAT/​C/​MAR/​CO/​4, para 5. 226 227   CAT/​C/​CHN/​CO/​4 (n 148) para  33.   Boulesbaa (n 30) 26; Wendland (n 178) 28. 228   Ingelse (n 90) 210. 229   CAT/​C/​GC/​2 (n 88) 17. See CAT/​C/​GC/​2 (n 88) on what is understood by effective measures. Zach