the torture process must be a public official or must at any rate act in a non-private capacity, eg as a de facto organ of a State or any other authority-wielding entity” (Prosecutor v Furundžija, Trial Chamber Judgment, 10 December 1998, para 162; see also Appeal Chamber Judgment, 21 July 2000, para 111), it later took the contrary view (Prosecutor v Kunarac, Trial Chamber Judgment, 22 February 2001, para 496; Appeals Chamber Judgment, 12 June 2002, para 148). It is now established that there is no such requirement in the case of war crimes or crimes against humanity in international humanitarian law. In particular, there is no such requirement in the case of torture as a war crime or a crime against humanity under the Statute of the ICC. As a result, it is necessary to exercise caution when referring to materials and authorities on international humanitarian law for the purpose of ascertaining the scope of article 1 of UNCAT. 20. Torture as a crime against humanity and torture as a war crime, as defined in the Statute of the ICC, are both offences contrary to UK law by virtue of sections 50 and 51, International Criminal Court Act 2001. As a result, torture committed in certain circumstances may be prosecuted here as a war crime or a crime against humanity. However, the alleged conduct which gives rise to the current charges against the appellant could not be prosecuted in the United Kingdom on either of these bases, even if the elements of these offences were otherwise established, because section 65A of the International Criminal Court Act 2001, inserted by section 70 of the Coroners and Justice Act 2009, which deals with retrospective application, provides that the relevant sections apply to acts committed on or after 1 January 1991, which is later than the date on which the instant offences are alleged to have been committed. The submissions of the parties 21. On behalf of the appellant Mr Steven Powles QC submits that section 134 CJA and the term “person acting in an official capacity” apply only to those acting for or on behalf of the government of a State. He submits that this is the ordinary meaning of both section 134 CJA and article 1, UNCAT, in light of the object and purpose of UNCAT, that this is also supported by the travaux preparatoires and that this is further demonstrated by the pronouncements of the UN Committee against Torture. He submits that, as a result, section 134 CJA does not apply to the conduct of an alleged member of an armed opposition group fighting against or seeking to overthrow the government of a State. 22. On behalf of the prosecution Mr David Perry QC submits that section 134(1) CJA covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs. Furthermore, it covers any such person whether Page 8