Seeking Remedies for Torture Victims: A Handbook on the Individual Complaints Procedures of the UN Tready Bodies
General Comment No. 2, and noting that “this interpretation of the concept of
jurisdiction is applicable in respect not only to Article 2, but of all the provisions
set forth in the Convention” 107 asserted that “the Civil Guard officers exercised
control over the persons on board the vessel and were therefore responsible for
their safety”.108
Therefore, the case law of the HRC and the CAT Committee indicates that States are
responsible for violations of rights perpetrated by their agents when those agents
operate abroad and exercise effective control over a person or territory, at least so
long as those agents are acting in their official capacity.
iv. Ratione Personae
States parties are generally responsible for the acts of their own agents. This is
so even if the act is perpetrated by an agent who exceeds his or her authority
or disobeys instructions.109 For example, the HRC found that the State party was
responsible for a “disappearance” perpetrated by a corporal who kidnapped the
victim, in Sarma v. Sri Lanka, despite the State’s contention that the corporal acted
beyond authority and without the knowledge of his superior officers.110
Furthermore, under the ICCPR and the CAT, States parties must take reasonable steps to prevent private actors (whether they be natural or artificial persons
like corporations) from abusing the rights of others within their jurisdiction.111
For example, the HRC has stated that:
It is … implicit in Article 7 that States parties have to take positive measures to ensure
that private citizens or entities do not inflict torture or cruel, inhuman, or degrading
treatment or punishment on others within their power.112
It seems unlikely that a State is responsible under either treaty for the acts of its
private citizens committed outside the territory over which a State has legal or
effective control.113 However, a State probably is so liable when private actors are
acting under its authority, such as pursuant to a military contract. For example, the
HRC expressed its concern to the US over the compatibility of certain interrogation
107 CAT Committee, Sonko v. Spain, Comm. No. 368/2008, para. 10.3. See also CAT Committee, J.H.A. v.
Spain, Comm. No. 323/2007, para. 8.2.
108 Ibid.
109 See Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by
the International Law Commission at its Fifty-third Session, (2001) UN Doc. A/CN.4/L.602/Rev.1,
Article 7.
110 HRC, Sarma v. Sri Lanka, Comm. No. 950/2000, para. 9.2.
111 See Sections 3.1.2 and 4.1.2.
112 HRC, General Comment No. 31, para. 8.
113 Joseph and Castan (2013), para. 4.24.
58
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