in respect of which the machinery of investigation and prosecution might therefore not function normally.54 It follows from the text of Article 1 that it does not apply to private acts of cruelty: International concern arises only where cruelty has official sanction55, the rationale being that private conduct is normally sanctioned under national law. The element of official sanction is stated in very broad terms and extends to officials who take a passive attitude, or who turn a blind eye to torture committed against opponents of the government in power, be it by unofficial groups or by the authorities.56 Failure to act in such cases could well be interpreted at least as acquiescence.57 While neither this nor other proposals were incorporated in the Convention by the Working Group, the CAT, in the decision of Elmi v. Australia60, found that warring factions operating in Somalia, which have set up quasi-governmental institutions and which exercise certain prerogatives that are comparable to those normally exercised by legitimate governments, can fall within the phrase “public officials or other persons acting in an official capacity” contained in Article 1 of the Convention.61 Lawful sanction Pain and suffering arising from, inherent in, or incidental to a lawful sanction falls outside the ambit of torture. In the view of the UN Special Rapporteur on Torture, the “lawful sanctions” exclusion must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment, which is common to almost all penal systems. Deprivation of liberty is a lawful sanction, provided that it meets basic internationally accepted standards, such as those set forth in the United Nations Standard Minimum Rules for the Treatment of Prisoners. 62. However, a procedurally correct sanction could still fall within the scope of Article 1 of the Convention.63 The administration of such punishments as stoning to death, flogging, and amputation – acts which would be unquestionably unlawful in, say, the context of custodial interrogation – cannot be deemed lawful simply II. INDIVIDUAL ANALYSIS OF ARTICLES 1–16 OF THE CONVENTION 2. ANALYSIS OF SUBSTANTIVE PROVISIONS Despite lengthy discussion, the Working Group drafting the Convention was unable to decide upon a definition of the term “public official”.58 Both the USA and the Federal Republic of Germany proposed that the term be defined. Germany felt, in particular, that it should be made clear that the term “public official” contained in §1 refers not only to persons, who, regardless of their legal status, have been assigned public authority by government organs on a permanent basis or in an individual case, but also to persons who, in certain regions or under particular conditions, actually hold and exercise authority over others and whose authority is comparable to government authority.59 29