The Liability of Non-State Actors for Torture in Violation of International Humanitarian Law: An Assessment of the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia

By Lord, Rachel | Melbourne Journal of International Law, May 2003 | Go to article overview

The Liability of Non-State Actors for Torture in Violation of International Humanitarian Law: An Assessment of the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia


Lord, Rachel, Melbourne Journal of International Law


[The International Criminal Tribunal for the Former Yugoslavia, in considering charges of torture as a war crime, has on three occasions been required to determine the definition of torture under international humanitarian law. One aspect of the definition that has proved problematic is whether torture encompasses only acts committed by public officials or persons acting in an official capacity. This is an element of the definition of torture propounded in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment This article surveys the jurisprudence of the ICTY regarding the definition of torture and the relevance of the definition in the Convention against Torture. The conclusions of the ICTY Chambers are then assessed in light of the relevant provisions of, and commentary to, conventional international humanitarian law; the extra-conventional effect of the Convention against Torture; and the definition of torture adopted in other international regional and national contexts.]

I INTRODUCTION

Torture is a term used in legal discourse to describe, broadly, the infliction of physical or mental pain and suffering upon a person for certain purposes. The precise meaning of the term, however, arguably remains unsettled for the purposes of international law. One notably difficult aspect of the definition of torture has been the status of the perpetrator, that is, whether torture by its very meaning pertains only to acts committed by the state or its agents or persons acting in an official capacity. Argument exists that 'judicial torture is the only kind of torture, whether administered by an official judiciary or by other instruments of the state ... [and] that other things sentimentally called "torture" had better be called something else'. (1) In contrast, it is contended that the practice is defined by the nature of the act and that, as such, the status of the perpetrator is not an inherent element of the definition of torture.

The International Criminal Tribunal for the Former Yugoslavia ('ICTY'), in its consideration of torture as a war crime, has been required to address the legal definition of torture under international humanitarian law. (2) Torture, whilst broadly proscribed under international humanitarian law, is not defined in international humanitarian law instruments. In the absence of an express definition, the ICTY has been required to determine the definition of torture under customary international law. In its assessment, the ICTY has vacillated in its conclusions as to whether torture by its very definition encompasses only acts committed by public officials or persons acting in an official capacity. Much of the quandary has related to the question of whether the definition of torture expounded in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (3) is representative of customary international law and, if so, whether it is the customary definition for the purposes of international humanitarian law. The Convention against Torture defines torture as follows:

   For the purposes of this Convention, the term 'torture' means any
   act by which severe pain or suffering, whether physical or mental,
   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, 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. It does
   not include pain or suffering arising only from, inherent in or
   incidental to lawful sanctions. (4)

The Convention against Torture, therefore, defines torture as an act perpetrated by a limited class of persons, namely, state officials and persons acting in an official capacity. …

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The Liability of Non-State Actors for Torture in Violation of International Humanitarian Law: An Assessment of the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia
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