GUIDE ON ANTI-TORTURE LEGISLATION omission – for example by depriving a detainee medicine on purpose – to respect the object and purpose of the Convention.11 In its General Comment N°3, the Committee also advises that “acts and omissions” are included in the crime of torture.12 For a specific purpose: article 1 provides that torture is any act that “is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind”. Torture is therefore the infliction of pain done with a special motive or purpose behind it. Article 1 lists the most commonly found purposes, however, this list is not exhaustive as indicated by the words “for such purposes as” and States are free to add any other purposes to the list, as long as it remains open and flexible, to include other purposes that would fall within the article 1 definition. The purpose and intent requirements however do not involve a subjective inquiry into the motivation of the perpetrators, but rather must be objective determinations taking into account all the circumstances.13 By a public official or with the consent or acquiescence of a public official: the article 1 definition does not encompass private acts by persons that have no connection with the State. The obligation to criminalise torture under the Convention is for acts or omissions of public officials, or with their consent or acquiescence or by anyone acting in an official capacity: the link with a State agent is part of the article 1 definition. However this does not mean that the definition should be understood as only covering public officials. As a matter of fact, the Committee has clarified that the article 1 definition is broad, and has expressed concern where States define “public official” too narrowly.14 Article 1 encompasses abuse committed by non-State or private actors if public officials knew or have reasonable grounds to believe that acts of torture are being committed by non-State or private actors and they fail to exercise due diligence to prevent, investigate, prosecute or punish such non-State or private actors, the officials should be considered as authors, complicit or otherwise responsible for consenting to or acquiescing in such impermissible acts.15 The Committee has also interpreted the language “acting in an official capacity”, for example, to include de facto authorities, including rebel and insurgent groups which “exercise certain prerogatives that are comparable to those normally exercised by legitimate governments”.16 The lawful sanctions clause Article 1 of the Convention also explicitly excludes from the definition of torture “pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Nigel Rodley and Matt Pollard, Criminalisation of torture: State obligations under the United Nations Convention against torture and other cruel, inhuman or degrading treatment or punishment (2006), E.H.R.L.R. 115, p. 120. 11 12 CAT, General Comment N°3: Implementation of Article 14 by States Parties (13 December 2012), UN Doc. CAT/C/GC/3, §§ 3, 23 and 37. 13 14 14 CAT, General Comment N°2, op. cit. 1, § 9. CAT, Report of the Committee against Torture, 51st and 52nd sessions (2013-2014), UN Doc. A/69/44, pp. 38, 113, 114 and 121. 15 CAT, General Comment N°2, op. cit. 1, § 18. 16 CAT, Elmi v. Australia (25 May 1999), UN Doc.CAT/C/22/D/120/1998, § 6.5.