punishment which do not amount to torture as defined in article 1, when such acts
are committed by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity (article 16).
17.
UNCAT entered into force on 26 June 1987, in accordance with article 27(1).
It currently has 166 State Parties.
Torture in international humanitarian law
18.
Torture for the purposes of UNCAT must be distinguished from discrete
concepts of torture in international humanitarian law where torture may form the
basis of a war crime or a crime against humanity. I would draw attention, in
particular, to the following matters.
(1)
Article 3, common to each of the four Geneva Conventions of 1949,
prohibits torture in non-international armed conflicts and establishes
protections for persons who do not or who no longer take an active part in
hostilities. In Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v United States of America) (Merits, Judgment) ICJ Rep 1986,
14 at 113-4, para 218, the International Court of Justice held that Common
Article 3 establishes minimum guarantees that apply in all armed conflict.
(2)
The statutes of the ad hoc international tribunals for the former
Yugoslavia (“ICTY”) and Rwanda (“ICTR”) conferred jurisdiction to try
offences of torture committed during armed conflict without defining the
offence. The Tribunals produced their own definitions, based heavily on
UNCAT.
(3)
Under the Rome Statute of the International Criminal Court (“ICC”),
17 July 1988, torture is capable of constituting (1) a crime against humanity
when committed as part of a widespread or systematic attack directed against
any civilian population (article 7(1)(f)); (2) a war crime when committed in
an armed conflict whether international or not of an international character
(articles 8(2)(a)(ii) and 8(2)(c)(i)).
19.
A vital distinction for present purposes between torture under UNCAT and
torture in international humanitarian law is that torture under UNCAT is limited to
cases where “pain or suffering is 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”. Although the ICTY initially considered that there was a requirement in
respect of torture in an armed conflict that “at least one of the persons involved in
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