Journal of International Criminal Justice Advance Access originally published online on April 24, 2008
Journal of International Criminal Justice 2008 6(2):183-193; doi:10.1093/jicj/mqn026
| ||||||||||||||||||||||||||||||||||||||||||||||||
I. The Legal Contours of the Crime of Torture |
When is the Involvement of State Officials a Requirement for the Crime of Torture?
* Professor of International Criminal Law, University of Geneva; Professor of International Law, University of Florence; member, Board of Editors of this Journal. [paola.gaeta{at}droit.unige.ch].
 |
Abstract |
|---|
 Top Abstract 1. Introduction2. Is the Definition...3. Torture in Human...4. The Multi-faceted Notion...Notes |
|---|
Torture is prohibited by a certain number of international instruments — a demonstration of the willingness of the international community to outlaw torture in all its manifestations. Yet this set of legal rules seems to have generated confusion as regards the definition of torture. One controversial aspect concerns the requirement that for torture proper to be committed, it must be carried out by state officials or with their involvement. The author argues that the notion of torture depends upon the particular context in which it is used. In the field of international criminal law, the notion of torture as a crime per se, i.e. as a crime which is punishable as such, even if perpetrated sporadically and regardless of whether it is perpetrated in time of peace or war, requires the involvement of a state official. This is so because it is necessary not to ‘trivialize’ the interference of the international community into the realm of criminal law by imposing the criminalization of every single instance of wicked conduct of an entirely private nature. By contrast, the requirement of state official is not needed anymore for torture as a war crime or a crime against humanity. In both cases the quid pluris that turns the infliction of severe pain and suffering into a crime of international concern is the contextual element, i.e. the particular context of violence surrounding the criminal act, coupled with the need to protect the mental and physical integrity of human beings when they are systematically disregarded by deviant behaviours, or when a situation of armed conflict put them at great risk. On the other hand, the notion of torture is wider in non-criminal law contexts. Under human rights treaties, a state can be held responsible for every single instance of torture, including pain and suffering inflicted by a private individual against another private individual under his custody. The reason is that under such treaties states are obliged not only not to violate themselves the protected rights, but also to act as their ultimate defenders when the full enjoyment of those rights is jeopardized by private individuals. The legal definition of torture is a sort of chameleon that — while always embracing the notion that the infliction of acute pain and suffering upon a person under the control of another is required — by necessity changes the colour of its skin as far as additional elements are concerned, depending on the context in which it is situated.
|
1. Introduction |
|---|
|
TopAbstract1. Introduction2. Is the Definition...3. Torture in Human...4. The Multi-faceted Notion...Notes |
|---|
As is well known, torture is prohibited by a number of international instruments, some of which, although not legally binding, contributed to the formation of a customary law rule banning this odious practice, and paved the way for the conclusion of international treaties on the matter.1 The existence of such a variety of international rules demonstrates the willingness of the international community to outlaw torture in all its manifestations: to use the wording of the ICTY Trial Chamber in Furund
jia, ‘no legal loopholes have been left’.2 This set of legal rules, while constituting the indispensable legal panoply to fight a phenomenon both ancient and heinous, seems to have generated confusion as regards the definition of torture. One controversial aspect concerns the requirement that for the crime of torture to be committed, it must be carried out by state officials or with their involvement. This requirement is expressly provided for under Article 1 of the 1984 UN Convention against Torture, according to which
the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... when such 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.
However, the UN Committee of Human Rights, when interpreting the relevant provision of the Covenant on Civil and Political Rights proscribing torture (Article 7), held that requirement to be irrelevant.3 The European Court of Human Rights has taken the same approach: in a few cases it expressly recognized that the relevant provision of the European Convention (Article 3) also affords protection against torture when severe pain and suffering is inflicted by private individuals, regardless of the participation, consent or acquiescence of a state official in the acts of torture.4
The question of the definition of torture, including whether the involvement of a state official is a legal ingredient for this offence, was also raised before the ICTY, since the Statute, while vesting the Tribunal with jurisdiction over torture as a crime against humanity and a war crime,5 does not define it. Before Kunarac, the ICTY Chambers took a restrictive approach and considered the definition of torture enshrined in Article 1 of the UN Convention to reflect the content of customary international law, and therefore to be applicable for the purposes of ICTY jurisdiction.6 In Kunarac, however, the ICTY reversed this position. In the judgment delivered in this case, the Trial Chamber stated that the notion of torture under (customary) international humanitarian law differs from the definition embodied in Article 1 of the 1984 UN Convention. According to the Trial Chamber, international humanitarian law does not restrict torture to acts committed by state officials, or at their instigation, or with their consent or acquiescence. On the contrary, for the Trial Chamber ‘the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international humanitarian law’.7 The Appeals Chamber in Kunarac, while in previous cases seemed to uphold a different view, confirmed the stand taken by the Trial Chamber.8 Finally, it is worth noticing that under the ICC Elements of Crimes, the definition of torture as a war crime or as a crime against humanity does not require the involvement of a state official in the commission of the crime.
Against this background, one wonders where the correct legal solution lies, and whether and to what extent the requirement of state official involvement is necessary for the crime of torture to be committed. As I will endeavour to demonstrate in this article, there is no one single answer: in international law the notion of torture changes depending of the particular legal context in which it is applied.
|
2. Is the Definition of Torture in the UN Torture Convention Generally Applicable in International Criminal Law? |
|---|
|
TopAbstract1. Introduction2. Is the Definition...3. Torture in Human...4. The Multi-faceted Notion...Notes |
|---|
It is not trivial to recall that international law deals with torture as a criminal act in different ways. First, by virtue of the UN Torture Convention, torture is punishable per se, i.e. as a discrete crime distinct from other international crimes such as war crimes and crimes against humanity. As already noticed previously, the definition of torture contained in this Convention expressly requires that it be inflicted by a state official, or at his instigation, or with his consent or acquiescence. Can this requirement be ‘exported’ outside the realm of the Convention and be applied when torture is proscribed as a war crime or a crime against humanity?
A. The Hybrid Nature of the UN Torture Convention
No one would contest that it is methodologically correct to cautiously import notions and definitions from one field of international law to another. Therefore, to establish whether one can transplant the definition of torture embodied in Article 1 of the UN Torture Convention, one ought first to fully understand what purpose(s) this definition serves in the Convention itself. In this regard, one cannot fail to notice that although it can be considered a treaty belonging to international human rights law, in fact the UN Torture Convention presents unique features that make it profoundly different from more ‘traditional’ human rights treaties (such as the Covenant on Civil and Political Rights, the European Convention on Human Rights, the Inter-American Convention on Human Rights and so forth).
Admittedly, the UN Torture Convention aims at protecting a fundamental human right (the right not to be subjected to torture or to inhuman or degrading treatment). In addition it follows the pattern of other human treaties in that it establishes a monitoring body — the Committee against Torture — which examines reports of State Parties on the measures taken to give effect to their obligations under the Convention, and can also be vested with competence to pronounce upon inter-State or individual ‘communications’ (claiming that a State Party has breached its undertakings under the Convention). However, unlike other human rights treaties, the essence of the UN Torture Convention is to impose upon contracting states obligations in criminal matters. It obliges them to adopt national legislation to criminalize torture as a discrete crime, i.e. as a crime distinct and autonomous from torture as a war crime, a crime against humanity or any other international crime of a similarly complex structure. In addition, it compels them to establish domestic criminal jurisdiction over this criminal offence in accordance with given grounds, to take an alleged torturer into custody, to extradite him or her or to submit the case to their competent prosecuting authorities. It also requires States Parties to include torture, attempt to commit torture and complicity or participation in torture, as extraditable offences in extradition treaties, and invites them to consider the Convention itself as the legal basis for extradition in respect of such offences. Finally, it imposes upon States Parties the obligation to ensure that their competent authorities proceed to a prompt and impartial investigation when there is ground to believe that an act of torture has been committed in any territory under their jurisdiction.9
In sum, the UN Torture Convention aims at protecting a fundamental human right mainly (although not exclusively) by means of criminal law. In this respect it exhibits the features of treaties on judicial cooperation, such as those concluded to repress crimes such as counterfeiting, slavery, traffic in women and children, ‘terrorist crimes’, money laundering, corruption and so forth. It would be therefore erroneous to contend, as the ICTY Trial Chamber did in Kunarac, that the definition of torture enshrined in the UN Torture Convention cannot be applied rashly for the purpose of exercising the ICTY criminal jurisdiction since that Convention is a human right treaty, and therefore pertains to a body of law having its own specific features.10 On the contrary, the definition of torture contained in the UN Torture Convention mainly serves criminal law purposes: it is meant to apply within national legal systems to reach uniformity in national criminal legislation, so as to allow national authorities to prosecute an alleged torturer on the basis of the same legal definition and in accordance with multiple heads of jurisdiction, and to oblige the custodial state to extradite him to another contracting state in the event of a lack of prosecution. On the other hand, however, it would be fallacious to reach the conclusion that the ‘criminal’ definition of torture as a discrete crime, in particular the requirement of the involvement of state officials, must perforce apply to torture as a war crime or a crime against humanity. In international criminal law, torture as a discrete crime cannot be assimilated sic et simpliciter to torture as a war crime or as a crime against humanity, for — as I will endeavour to show subsequently — the former is taken into account at the international level for reasons profoundly different from those of war crimes or crimes against humanity. It is therefore possible to consider the definition of torture set forth the UN Torture Convention not to conform with the definition of torture as a war crime, or as a crime against humanity.
B. Official Torture and Private Torture in International Criminal Law
The reason why the UN Torture Convention singles out only torture inflicted by state officials or with their involvement is easily explained if one bears in mind that international law only deals with criminal conduct in exceptional cases, on account of the prerogative of states in these matters (the jus puniendi being one of the main manifestations of state sovereignty). International law is predominantly used by states for criminal issues as a tool to achieving stronger cooperation in judicial matters, when they want to oppose forms of trans-national criminality jeopardizing their collective interests. To attain this goal they conclude treaties on judicial cooperation, such as those mentioned previously. In addition, international law has evolved to the point where it directly criminalizes and punishes conduct belonging to what one can term ‘state criminality’, namely conduct taken by state officials in their official capacity or backed by the apparatus of the state, or within the context of widespread and collective violence (such as wars and armed conflicts in general). This process has its roots in the gradual emergence of a set of ‘supra-national’ values, proper to the international community as a whole that must be safeguarded against those individuals who, acting on behalf of a state or acting within state machinery, or by taking advantage of a context of collective violence, disregard them. This process has culminated in the recent establishment of a host of international and hybrid criminal courts and tribunals, endowed with jurisdiction over so-called ‘core crimes’, i.e. genocide, crimes against humanity and war crimes, whose prohibition under customary international law appears uncontroversial.
This premise, as I said before, helps clarify why the Torture Convention sets out the requirement of the involvement of state officials for torture. The Convention, as I have already emphasized, deals with torture as a crime per se: under the Convention, the crime of torture is therefore punishable as such even when it is perpetrated sporadically, and regardless of whether it is committed in times of peace or in times of war. In addition, under the Convention every single instance of torture constitutes a punishable offence, no matter whether it has been committed during an armed conflict, or within a context of collective violence. The requirement of a ‘state official’ is therefore needed to avoid that under international law a single conduct — although consisting of an infliction of severe mental or physical pain or suffering — be considered criminal when it is carried out by private individuals for private purposes. Such conduct is not of international concern and is therefore not covered by the Convention. In other words, the state official requirement constitutes what one could term the quid pluris, transforming an ‘ordinary’ criminal offence into an international crime. It simply serves the purpose of precluding every single wicked act carried out by private individuals against other private individuals from being elevated to the international level.
Clearly, this requirement is no longer needed when other elements are capable of ‘upgrading’, as it were, an individual conduct of ‘merely’ internal concern to the level of an international crime. One can think of the infliction of severe pain and suffering within a pattern of widespread or systematic violence (private and public) of which the perpetrator is aware, or — during an armed conflict — against a protected person for reasons linked to the conflict. In both these instances, under international law torture can be punished regardless of the involvement or participation of a state official, simply because this requirement becomes, in a way, redundant. In both cases, the quid pluris that turns the infliction of such pain or suffering into an international crime is the particular context of violence surrounding the act, coupled with the necessity to protect the dignity and integrity of human beings when they are systematically disregarded by deviant behaviours, or a situation of armed conflict puts them at great risk.
In a nutshell, the definition of torture enshrined in the 1984 UN Torture Convention simply reflects the willingness of contracting states to oppose, essentially by way of (domestic) criminal law, a specific behaviour — torture — but only when it is committed on behalf of or with the acquiescence of a state. This is a fully warranted limitation if one takes into account that international law interferes in criminal matters only under exceptional circumstances. One of these circumstances is the need to avoid states disregarding values of fundamental importance for the international community as a whole. To this end international law has progressively provided for the criminalization of deviant behaviour carried out by state officials under the cover of law or thanks to their acquiescence or tolerance. The definition of the crime of torture under the UN Convention is narrower than that of torture as a war crime or as a crime against humanity simply because it is necessary not to ‘trivialize’ the ‘intrusion’ of the international community into the realm of criminal law by imposing the criminalization of every single instance of wicked conduct of an entirely private nature.
|
3. Torture in Human Rights Treaties |
|---|
|
TopAbstract1. Introduction2. Is the Definition...3. Torture in Human...4. The Multi-faceted Notion...Notes |
|---|
As for torture in ‘truly’ human rights treaties, such as the UN Covenant of Civil and Political Rights, the European Convention of Human Rights and so forth, the question arises as to whether and on what basis international bodies such as the UN Committee on Human Rights and the European Court of Human Rights were correct in holding that, under these instruments, to be inflicted, torture need not be undertaken by a state official or with his or her involvement for the responsibility of contracting states to arise.
In this regard one should be careful not to overemphasize that the doctrine of human rights emerged at the international level out of the need to protect individuals from state abuses. This is undoubtedly true; however, if one pays excessive attention to this consideration one might be tempted to believe that the rights enshrined in international human rights law instruments operate only in a vertical dimension, i.e. when they are concretely violated by a state through its organs. However, this is not so. For, the philosophical (Western) conception underpinning all international human rights instruments is that these rights enjoy protection because they are inherent in every human being.11 It is therefore only natural to conceive the protection of human rights also in a horizontal and private dimension, i.e. when their full enjoyment is jeopardized by behaviour of other private individuals. Clearly, there are rights proclaimed in the relevant international instruments that, by their very nature, can only be violated by state officials: one clear example is the right to a fair and expeditious trial. The same is not true for other rights, such as the right to respect for private life and the right for respect for family life, which may be breached also by private individuals. That is why — on account of human rights treaties — contracting states are requested not only not to violate themselves the enjoyment of those rights by their own officials, but also to take appropriate measures to guarantee that the free exercise of such rights is not jeopardized by behaviour of private individuals.
It is therefore fully warranted for human rights bodies to have held that the status of the perpetrator with regard to torture, as well as with regard to other rights set forth in the treaties, is irrelevant. Torture, as it amounts to the intentional and severe infliction of pain and suffering, can be administered by any individual. The right to be free from torture does not inherently require that it must be violated by state officials: nothing in human rights treaties warrants such a restrictive approach. On the contrary, as I have just noted, what matters in the context of such treaties is that contracting states should play, and not abdicate, their crucial role as the ultimate defenders of the rights enumerated in treaties they have freely entered upon, including the right not to be subjected to torture. It is simply by reason of the scope and purpose of human rights treaties that the protection from torture, under these treaties, does not require — unlike the criminal protection afforded by the UN Torture Convention — the necessary involvement of a state official in the infliction of torture.
|
4. The Multi-faceted Notion of Torture in International Law |
|---|
|
TopAbstract1. Introduction2. Is the Definition...3. Torture in Human...4. The Multi-faceted Notion...Notes |
|---|
It should be clear from the above that the notion of torture depends upon the particular context in which it is used. In essence torture always amounts to an infliction of serious pain and suffering on individuals who happen to be in the hands of their perpetrators. However, the need for other definitional requirements arises out of the peculiarities of the legal scenario within which the notion of torture is used. This also applies to the requirement that torture be inflicted by a state official or with his or her involvement or thanks to his or her acquiescence.
In the field of international criminal law, as I have tried to underline in this article, the notion of torture as a discrete crime not only diverges from that of torture as a war crime or as a crime against humanity, but also has a different and broader scope in non-criminal law contexts. This may be contrasted with human rights treaties, where state responsibility is engaged whenever serious pain or suffering is inflicted upon an individual. In other words, in human rights treaties — unlike international criminal law — torture is not made contingent upon particular requirements, such as the status of the torturer and his specific purposes (as is the case with torture as a discrete crime), or the status of the victim and the nexus with an armed conflict (as is the case with torture as a war crime), or upon the pattern of a systematic or widespread attack against a civilian population (as in the case of crime against humanity). Under human rights law treaties, a state can be held responsible for every single instance of torture, including pain and suffering inflicted by a private individual against another private individual under his custody. The international responsibility of the state arises not because the torturer acted in his or her official capacity, or occurred with the acquiescence or consent of a state official. Although this may be the most frequent occurrence of torture, under human rights treaties the responsibility of contracting states may also arise from their failure to guarantee that the right not to be subjected to torture be respected by private individuals. In such cases, it is such a failure — and not the act of torture in itself — that is imputable to the state for its international responsibility to arise on the basis of those treaties. The same holds true when torture is inflicted by state officials. Again, under human rights treaties this circumstance is only accidental, and the state can be held responsible just because — having torture administered by one of its organs — it inevitably failed to respect the right of individuals not to be subjected to torture.
Admittedly, a state can also be accountable, also under customary international law, for having itself engaged in torture. This responsibility by necessity requires the individual behaviour to be attributable to the state as such. However, one may wonder whether a state can be held internationally responsible for having committed torture under customary international law for single instances of torture (i.e. when torture has been sporadically inflicted by one of its state officials), or whether a consistent practice or pattern of torture is instead necessary.
This is not the appropriate place to tackle this issue, which is nevertheless crucial. For, it is important to always bear in mind when faced with the increasing ‘fragmentation’ of international law and the unavoidable overlap among its different branches, that one should never lose sight of the particular normative framework in which legal notions are used. This is particularly true for a phenomenon such as torture, which international law tries to fight from different angles, by imposing upon states and individuals specific but complementary obligations. The outcome is that the legal definition of torture becomes a sort of chameleon that — while always embracing the notion that the infliction of acute pain and suffering upon a human being in control of another one is required — by necessity changes the colour of its skin as far as additional elements are concerned, depending on where it finds itself.
|
Notes |
|---|
|
TopAbstract1. Introduction2. Is the Definition...3. Torture in Human...4. The Multi-faceted Notion...Notes |
|---|
1 See for instance Art. 5 of the Universal Declaration of Human Rights, Art. XXVI of the American Declaration of the Rights and Duties of Man (1948), Art. 7 of the UN International Covenant on Civil and Political Rights, Art. 3 of the European Convention of Human Rights, Art. 5(2) of the American Convention on Human Rights and Art. 5 of the African Charter on Human and Peoples’ Rights. See also the 1975 UN Declaration on the Protection of All Persons from Being Subjected to Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, that led to the conclusion of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading treatment or Punishment (‘the UN Torture Convention’), and the 1985 Inter-American Convention to Prevent and Punish Torture. In international humanitarian law, torture is prohibited by the four Geneva Conventions and the 1977 Additional Protocols (see common Art. 3; Arts 12 and 50 of Geneva Convention; Arts 12 and 51 of Geneva Convention II; Arts 13, 14 and 130 of Geneva Convention III; Art. 75 of Additional Protocol I and Art. 4 of Additional Protocol II). In addition torture as a crime against humanity was subject to the jurisdiction of the tribunals acting under Control Council Law No. 10 (Art. II(1)(c)), and constitutes a crime against humanity both under the ICTY and the ICTR Statute (Art. 5(f) and Art. 3(f), respectively). The ICC Statute expressly provides that torture can constitute a crime against humanity and a war crime (see Arts 7(1)(f), 8(2)(a)(ii) and 8(2)(c)(i)).
2 Judgment, Furundija (IT-95-17/1-T), Trial Chamber, 10 December 1998, 
146.
3 In General Comment no. 20, adopted in 1992, the Committee expressly stated that ‘[i]t is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by Article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity’. See General Comment no. 20, 2, available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924291970754969c12563 ed004c8ae5?Opendocument (visited 29 December 2007), emphasis added. In addition, it held that Art. 7 protects ‘in particular, children, pupils and patients in teaching and medical institutions’. Ibid., 5. The Committee did not specify that these institutions had to be public in nature. One can therefore argue that, in the view of the Committee, Art. 7 ensures the right to be free from torture also when children, pupils and patients are held in private institutions, and ill-treatment is inflicted by private individuals without any involvement of a state official.
4 See for instance the judgment in H.L.R. v. France, 29 April 1997, 40 and the judgment in A. v. United Kingdom, 23 September 1998, 22.
5 The jurisdiction of the ICTY over torture is expressly provided by the Statute with regard to torture as a grave beach of the Geneva Conventions (Art. 2 ICTYSt.), and as a crime against humanity (Art. 5 ICTYSt.). The ICTY has however considered to be vested with jurisdiction over torture also under Art. 3 of its Statute, which deals with war crimes not amounting to grave breaches of the Geneva Conventions. According to ICTY case law, torture is proscribed as war crime in non-international armed conflicts by virtue of common Art. 3 of the Geneva Conventions and because this provision gave rise to an identical rule of customary international law.
6 See Judgment, Delali
(IT-96-21-T), Trial Chamber, 21 February 2001. As regards the requirement that torture be committed by a state official, or at his instigation, or with his consent or acquiescence, the Trial Chamber confined itself to clarifying: ‘[i]n the context of international humanitarian law, this requirement must be interpreted to include officials of non-State parties to a conflict, in order for the prohibition to retain significance in situations of internal armed conflicts or international conflicts involving some non-State entities’. In Furundija, the Trial Chamber took a more explicit stand on the matter when it held: ‘[t]here is now general acceptance of the main elements contained in the definition set out in article 1 of the Torture Convention ... [including the requirement that] at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority- wielding entity’. See Judgment, Furundija (IT-95-17/1-T), Trial Chamber, 10 December 1998, 473.
7 Judgment, Kunarac (IT-96-23&23/1-T), Trial Chamber, 22 February 2001, 459. The Trial Chamber grounded this statement on three main arguments. First, it noted that — in the absence of a treaty-based definition in international humanitarian law — it can be misleading to borrow the definition of torture from human rights law without taking into account the specificities of international humanitarian law. Second, the Trial Chamber placed emphasis on the caveat in Art. 1 of the 1984 UN Convention against Torture, stressing that the definition of torture contained therein was meant to apply only for the purposes of the Convention itself. Moreover, it gave importance to 2 of the same Art., which makes it clear that the definition of torture adopted by the Convention is ‘without prejudice to any international instrument or national legislation which does or may contain provisions of wider application’. For the Trial Chamber these are elements that ‘must be kept in mind when considering the possibility that the definition of the Torture Convention produced an extra-conventional effect’. Third, it observed that other international human rights instruments and the case law of human rights bodies such as the European Court of Human Rights and the Human Rights Committee, point to a definition of torture broader than that enshrined in Art. 1 of the 1984 UN Convention. Therefore, for the Trial Chamber, ‘the definition of torture contained in the Torture Convention cannot be regarded as the definition of torture under customary international law which is binding regardless of the context in which it is applied’. As for the requirement that torture must be committed by a state official or with his involvement, the Trial Chamber considered this requirement to be an element of the definition of torture under human rights law, which is extraneous to international criminal law, and consequently not a necessary element for the definition of torture under international humanitarian law. Ibid., 465–497.
8 Judgment, Kunarac (IT-96-23&23/1), Appeals Chamber, 12 June 2002, 145–148.
9 As for civil matters, the UN Torture Convention compels states to afford the greatest measure of assistance with regard to civil proceedings brought in respect of torture, in conformity with any treaties on judicial cooperation binding on them, and to ensure that victims of torture have a right to complain and to obtain redress and fair and equitable compensation. Under the Convention, only some of these obligations also apply to inhuman and degrading treatment.
10 Admittedly this does not mean that the Trial Chamber was wrong when it held that, for the exercise of the ICTY jurisdiction, the requirement of the involvement of a state official in the commission of torture is not needed. However, this statement is correct for reasons that, as I will try to show in this article, are totally unconnected with the alleged human rights character of the UN Torture Convention. Moreover, by arguing that the UN Torture Convention is a human rights treaty and therefore the ICTY should be cautious to import the definition of torture contained therein into the context of international humanitarian law, the Trial Chamber fatally contradicts itself. On the one hand, it states that human rights instruments have a different scope and purport from the rules of international humanitarian law, and therefore one should be extremely careful when transposing notions of human rights law into the realm of international humanitarian law. On the other hand, when discussing whether the involvement of a state official as provided in the UN Torture Convention constitutes a legal ingredient of the crime of torture, the Trial Chamber focuses inter alia on the case law of European Court of Human Rights and on the pronouncements of the Human Rights Committee, and notes that these bodies have adopted a definition of torture that does not provide for this requirement (see supra, note 7). However, were the Torture Convention a human rights instrument like the others, one could not fully understand why the definition of torture enshrined in this Convention is limited to forms of ‘official’ torture, whereas in other human rights treaties the notion of torture is broader. In other words it seems odd that the Trial Chamber on the one hand, insists upon the human right character of the UN Convention on Torture to explain why it cannot mechanically import the definition of torture contained therein for the purpose of exercising its jurisdiction, and on the other hand, it endeavours to demonstrate that the definition of torture is broader than that of the UN Convention by laying emphasis on the pronouncements and case law of truly human rights bodies. This inherent contradiction is manifest if one carefully reads a short passage of the judgment, where the Trial Chamber — to reinforce its reasoning — observed that: ‘the human rights conventions consider torture per se while the Tribunal's Statute criminalizes it as a form of war crime, crime against humanity or grave breach. The characteristic trait of the offence in this context is to be found in the nature of the act committed rather than in the status of the person who committed it’. Judgment, 22 February 2002, supra note 7, 495. In fact one fails to understand why the Trial Chamber, after insisting that human rights instruments such as the Covenant and the European Convention do not require torture to be committed by state officials or with their involvement, in the passage quoted above implicitly states the opposite. In that dictum it underlines that the statutes of the ad hoc criminal tribunals, unlike human rights treaties, criminalize torture as a war crime and a crime against humanity and not per se; consequently (unlike human rights treaties?) it is the nature of the act that matters rather than the status of the person who perpetrated it. This statement is somewhat puzzling, for the Trial Chamber had argued until then that under human rights treaties the status of the person in the case of torture (i.e. the fact that torture has been inflicted by a state official or with his involvement) is totally irrelevant. One is therefore left with the impression that the Trial Chamber, because it neglected the unique features of the UN Torture Conventions, to avoid applying the definition contained therein eventually mixed up things and failed to contribute to elucidate the underpinnings of the varying definition of torture in different legal contexts.
11 In this regard, see A. Cassese, Human Rights in a Changing World (Cambridge: Polity Press, 1990) 51–52.
CiteULike 
Connotea 
Del.icio.us What's this?
| ||||||||||||||||||||||||||||||||||||||||||||||||