Difference between revisions of "Representing Victims of Torture"

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The fourth element of torture under CAT is that there must be "State action". The Convention Against Torture, Article 16 requires States to prevent acts 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. <ref> Convention Against Torture, Article 16 </ref>.  The U.N. Special Rapporteur on Torture, Nigel S. Rodley, interprets the state action requirement to be met when public officials are "unable or unwilling to provide effective protection from illtreatment (i.e. fail to prevent or remedy such acts), including ill-treatment by non-State actors" <ref> Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet: No. 4 Combating Torture, at 34 (May 2002) </ref>.
 
The fourth element of torture under CAT is that there must be "State action". The Convention Against Torture, Article 16 requires States to prevent acts 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. <ref> Convention Against Torture, Article 16 </ref>.  The U.N. Special Rapporteur on Torture, Nigel S. Rodley, interprets the state action requirement to be met when public officials are "unable or unwilling to provide effective protection from illtreatment (i.e. fail to prevent or remedy such acts), including ill-treatment by non-State actors" <ref> Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet: No. 4 Combating Torture, at 34 (May 2002) </ref>.
  
Although under CAT, torture by definition requires state action, private actors can be implicated in certain instances.  For example, if the individual violates Common Article 3 of the 1949 Geneva Conventions or crimes against humanity.  Yet even in these instances, a link to an organization (to a party to the conflict or to a group carrying out attacks on the civilian population as part of a policy) is necessary for individual criminal responsibility <ref> The Definition of Torture: Proceedings of an Expert Seminar.  Association for the Prevention of Torture.  November 10-11, 2001 </ref>.
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Although under CAT, torture by definition requires state action, private actors can be implicated in certain instances.  For example, if the individual violates Common Article 3 of the 1949 Geneva Conventions or crimes against humanity.  Yet even in these instances, a link to an organization (to a party to the conflict or to a group carrying out attacks on the civilian population as part of a policy) is necessary for individual criminal responsibility <ref> The Definition of Torture: Proceedings of an Expert Seminar.  Association for the Prevention of Torture.  November 10-11, 2001 </ref>.  The International Criminal Tribunals have upheld this loose view of the state action requirement.  <ref> Prosecutor v. Zenjil Delalic et al, Case no. IT-96-21-T, 16 November 1998, See also Prosecutor v. Furundjia, Case no. IT-95-17/1-T, 10 December 1998 </ref>.
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The Inter-American Court has generally upheld State's obligation to protect individuals from torture, even if not committed through any official capacity.  For example, in Velasquez
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Rodriguez v. Honduras, the Court held the State responsible for "acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside of the
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sphere of their authority or violate international law" <ref> Velasquez Rodriguez v. Honduras, (1988) Inter-Am.Ct.H.R. (Ser C) No.4 </ref>.
  
 
====5. Not arising out of lawful sanctions====  
 
====5. Not arising out of lawful sanctions====  

Revision as of 16:04, 1 July 2010