Taking Off The Blindfolds - Torture by Non-State Actors

TAKING OFF THE BLINDFOLDS: TORTURE BY
NON-STATE ACTORS
Robert McCorquodale and Rebecca La Forgia *
One of the most atrocious violations against human dignity is the act of
torture.1
International human rights law has traditionally been concerned with obligations of
the State towards people within its jurisdiction, with human rights treaties being
drafted, by States, to place direct legal obligations on States alone for actions by the
State.2 This approach to international human rights has been challenged by some
recent developments, especially in relation to allegations of violations of the
prohibition against torture. This article will consider the case oiSadiq Shek Elmi v.
Australia (Elmi),3 where it was considered that actions by non-State actors could,
under certain circumstances, lead to international human rights obligations on States.
It will be shown that the Elmi decision is consistent with the jurisprudence of those
international human rights supervisory bodies in which obligations on States arise
for actions by non-State actors. It is also part of a gradual movement away from an
international legal system focussed almost solely on the actions of States.
THE DEFINITION OF TORTURE
Many treaties and declarations, including those at regional level, contain provisions
prohibiting torture and other cruel, inhuman or degrading treatment or punishment4
and there are two regional treaties that prohibit torture and inhuman or degrading
Robert McCorquodale is Professor of International Law and Human Rights in the University
of Nottingham School of Law. Rebecca La Forgia is a Lecturer in the School of Law at
Flinders University, Australia. Robert was one of the legal advisers for Mr. Elmi in his
communication to the Committee Against Torture.
' Vienna Declaration and Programme of Action (VDPA), Chapter II B5 (adopted by consensus
on 25 June 1993 at the 1993 United Nations World Conference on Human Rights), 32 ILM
1661 (1993); 1 IHRR 240 (1994).
2
In regard to the situation of international crimes for which individuals are responsible, see the
discussion below.
3
Sadiq Shek Elmi v. Australia (120/1998), 7 IHRR 603 (2000).
4
For example, Article 5 Universal Declaration of Human Rights 1948 (UDHR), UN General
Assembly Resolution 217A (III) of 1948; Article 7 International Covenant on Civil and
Political Rights 1966 (ICCPR), 999 UNTS 171; Article 3 European Convention on the
Protection of Human Rights and Fundamental Freedoms 1950 (ECHR), 312 UNTS 222;
Article 5.2 American Convention on Human Rights 1969 (ACHR), 1144 UNTS 123; and
Article 5 African Charter on Human and Peoples' Rights 1981 (ACHPR), OAU Doc CAB/
LEG/67/3Rev.5.
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190 R. McCorquodale and R. La Forgia
treatment or punishment.5 There have also been two global instruments that are
exclusively concerned with torture and other cruel, inhuman or degrading treatment
or punishment. These are the Declaration on the Protection of All Persons from
Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 1975 (Declaration Against Torture)6 and the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (CAT), which
has 127 States parties.7 The widespread ratification of these treaties and other state
practice and opinio juris means that the prohibition on torture is clearly customary
international law.8 Indeed, it is probably now a rule of jus cogens: '[b]ecause of the
importance of the values it protects, [the prohibition on torture] has evolved into a
peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the
international hierarchy than treaty law and even 'ordinary' customary rules'.9
Despite this legal position, most of the relevant treaties do not provide a full
definition of 'torture' and 'other cruel, inhuman or degrading treatment or
punishment'. The Human Rights Committee (HRC), the supervisory body under the
ICCPR, has stated that:
The Covenant does not contain any definition of the concepts covered by
Article 7 [the relevant article], nor does the Committee consider it necessary
to draw up a list of prohibited acts or to establish sharp distinctions between
the different kinds of punishment or treatment; the distinctions depend on
the nature, purpose and severity of the treatment applied.10
Inter-American Convention to Prevent and Punish Torture 1985, 67 OASTS, and European
Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
1987, ETS 126.
Declaration on the Protection of All Persons from Being Subjected to Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment 1975, UN General Assembly Resolution
3452 (XXX) of 9 December 1975 (adopted without a vote).
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
1984, 1465 UNTS 85. Details regarding ratification are available from the UN Treaty
Database, www.unhchr.ch [26 November 2001].
See, for example, Filartiga v. Pena-Irala 630 F. 2"d 876 (1980) Second Circuit of the US
Court of Appeals, where the Court 'conclude[d] that official torture is now prohibited by the
law of nations'. The Court also noted that 'the torturer has become, like the pirate and the
slave trader before him, hostis humani generis, an enemy of all mankind'.
Prosecutor v. Furundzija, Judgment of the International Criminal Tribunal for the Former
Yugoslavia (ICTFY), at para. 153; 38 ILM 317 (1999). This aspect of the decision was
quoted with approval by Lord Browne-Wilkinson in the UK House of Lords i n R v . Bartle and
the Commissioner of Police for the Metropolis ex parte Pinochet (Pinochet) [2000] 1 AC
147, 38 ILM 581 (1999) at 589. See also Restatement (Third) of the Foreign Relations Law
of the United States, 2 American Law Institute (1987) 161, at para. 702.
HRC General Comment 20, at para. 4; 1 IHRR 26 (1994). For a distinction between 'torture'
and 'other cruel, inhuman or degrading treatment or punishment' under the ECHR see
Ireland v. UK (1978) 2 EHRR 25. See also Selmouni v. France (1999) 29 EHRR 403, at para.
101, where the European Court of Human Rights (ECtHR) considered that there is an
increasingly high standard expected of States and that certain acts that were classified previously
as 'inhuman and degrading treatment' could now be considered to be 'torture'.
Taking off the Blindfolds: Torture by Non-State Actors 191
It is beyond the scope of this article to deal with the distinctions between 'torture'
and 'other cruel, inhuman or degrading treatment or punishment'. The primary focus
of this article is on torture, because of 'the particular intensity and cruelty implied by
the word torture'.11 There are some slight differences in the terms of the prohibitions
on torture in the major human rights treaties.12 Also both the ICCPR and the ECHR
couple the prohibition on torture 'with general obligations to ensure that the rights
contained in the treaties are enjoyed by persons under the state's jurisdiction',13
which the CAT does not expressly contain but which could be implied.14
The important definition for the purposes of this article is that contained in
Article 1 of the CAT:
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.
The definition of 'torture' in Article 1 is binding on the parties to the CAT. Yet it has
wider legal impact, as this definition has been considered to represent customary
international law, with the International Criminal Tribunal for the Former Yugoslavia
(ICTFY) deciding that 'the broad convergence of the aforementioned international
instruments and international jurisprudence demonstrates that there is now general
acceptance of the main elements contained in the definition set out in article 1 of the
Torture Convention.'15
This definition contains three main elements necessary to be met before 'torture'
under the CAT can be found to have occurred.16 The first element concerns the
nature of the act, involving a level and type of pain and suffering, being 'severe pain
Ireland v. UK, ibid, at para. 167.

For example, Article 7 ICCPR adds the words '[i]n particular, no one shall be subjected
without his consent to medical or scientific experimentation'.
Byrnes, "The Convention Against Torture," in Askin and Koenig (eds.), Women and
International Human Rights Law (New York: Transnational, 2000) Vol. 2, 183 at 192.
See discussion below on acquiescence.
Prosecutor v. Furundzija, supra n. 9, at para. 161. Also note that the HRC states that the
prohibition on torture as set out in the ICCPR is customary international law, General
Comment 24, 'Issues Relating to Reservations Made Upon Ratification or Accession to the
Covenant or the Optional Protocols Thereto, or in Relation to Declarations under Article 41
of the Covenant' (1994), at para. 8; 2 IHRR 11 (1995).
See Kellberg, "Torture: International Rules and Procedures," in Duner (ed.), An End To
Torture (London: Zed Books, 1988), 31.
192 R. McCorquodale andR. La Forgia
or suffering, whether physical or mental'. The second element concerns the mental
attitude of the perpetrator, in that the infliction must be intentional and for a specific
purpose, for example, to obtain 'information or a confession'. The third element
concerns the identity of the perpetrator of the act, who has to be 'a public official or
other person acting in an official capacity'. It is this last element of the definition of
torture under the CAT that is the main focus of this article.
Article 1 of the CAT requires that, for a violation of the CAT to have occurred, it
is necessary that the action complained of was perpetrated by 'a public official or
other person acting in an official capacity'. Thus the perpetrator must be an official
- of some kind - of a State. Indeed, Lord Millett in the Pinochet case recognised this
particular aspect of the definition of torture under the CAT when he said:
The Convention against Torture (1984) did not create a new international
crime. But it redefined it. Whereas the international community had condemned
the widespread and systematic use of torture as an instrument of state policy,
the Convention extended the offence to cover isolated and individual instances
of torture provided that they were committed by a public official.17
The justification for the focus of Article 1 of the CAT on the acts of State officials is
clear from the travaux preparatories of the CAT:
The problem with which the Convention was meant to deal was that of torture
in which the authorities of a country were themselves involved and in respect
of which the machinery of investigation and prosecution might therefore not
function normally. In a typical case torture is inflicted by a policeman or an
officer of the investigating authority.18
Therefore, actions by any individual, group, organisation, national liberation

movement or any other actors that are not part of the organs of the State (hereafter
referred to as 'non-State actors'), are outside the scope of the definition in Article 1.
The rationale for this was as follows: '[i]f torture is committed without any involvement
of the authorities, but as a criminal act by private persons, it can be expected that the
normal machinery of justice will operate and that prosecution and punishment will
follow under the normal conditions of the domestic legal system'.19 Thus the drafters
of the CAT assumed that where non-State actors committed the acts that met the
other elements of the definition of 'torture' in Article 1 of the CAT, then the State
would take action within its jurisdiction against that non-State actor.
Pinochet, supra n. 9, at 650.

Burgers and Danelius, The United Nations Convention Against Torture, A Handbook on the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Dordrecht: Martinus Nijhoff, 1988) at 119-120.
Ibid.
In many instances a State will take action against a non-State actor who
intentionally inflicts physical and/or mental pain and suffering on a person for some
purpose such as intimidation, as such action will generally be a crime within the
State.20 However, in many instances a State is unable or unwilling to take such
action, often due to the power of those non-State actors or the ineffectiveness of the
State's institutions for the administration of justice.21 In such instances, international
human rights law is usually the only available system that can allow victims to seek
some redress for the violation of their human rights. The problem in relying on the
CAT for redress in such instances is that, as explained above, the CAT is limited to
actions by State officials. So if a non-State actor intentionally inflicts physical and/
or mental pain and suffering on a person for some purpose such as intimidation then
it is not 'torture' under the CAT.
Further, Article 2 of the CAT provides: '[e]ach State Party shall take effective
legislative, administrative, judicial or other measures to prevent acts of torture in any
territory under its jurisdiction'. This obligation is limited to the prevention of acts of
'torture' as defined in Article 1 of the CAT. Hence there is no clear direct international
legal obligation placed on States by the CAT to take effective national measures
against non-State actors who intentionally inflict physical and/or mental pain and
suffering on a person for some purpose such as intimidation.22
This article will explore the extent to which this apparently limited definition and
obligation under CAT on States, can be considered to give rise to either direct or
indirect responsibility under international human rights law for acts of 'torture' by
non-State actors. Its importance lies in the implications this has for international
human rights law and for the international legal system generally. The first means to
explore this issue will be by a discussion of the Elmi case before the Committee
Against Torture.
ELMI V. AUSTRALIA
In the case of Sadiq Shek Elmi v. Australia, the Committee Against Torture the
supervisory body that interprets and applies the CAT,24 dealt with the issue of the
20
Many States have legislation allowing for actions against non-State actors for violations of
the prohibition on torture, e.g., Torture Victim Protection Act 1992 (USA). Some members
of the UK House of Lords in Pinochet, supra n. 9, seemed to indicate that torture could not
be a crime for extradition purposes unless legislation clearly stated that it was a crime, see, for
example, Lord Hope.
21
See, for example, McCorquodale with Fairbrother, "Globalization and Human Rights," 21
Human Rights Quarterly (1999), 735, in relation to the power of transnational corporations.
See also discussion on the international legal system below.
22
The reason for this absence of a direct international legal obligation in the CAT is set out
supra in the text accompanying n. 19.
23
Sadiq Shek Elmi v. Australia (Elmi), supra n. 3.
24
The Committee Against Torture is established by Article 17 of the CAT. By virtue of Articles
19-20 of the CAT, States parties must submit periodic reports to and, if there is evidence that
torture is being systematically practised in that State, co-operate in confidential examinations
by the Committee Against Torture.
extent to which the actions of non-State actors gave rise to an international legal
obligation under the CAT. Under Article 22 of the CAT, individuals who claim to
have had their CAT rights violated, can submit a 'communication' to the Committee
Against Torture, provided that the relevant State party has made a declaration that
they recognise the competence of the Committee Against Torture to receive and
consider communications.
Mr. Sadiq Shek Elmi, a Somali national, sent a communication to the Committee
Against Torture stating that he had substantial grounds to fear that, should he be
returned to Somalia by the Australian government, which had refused his application
for asylum, he would be subjected to torture.25 Mr. Elmi argued that he feared that he
would be tortured by one of the powerful, armed groups ('clans' or 'factions')26 that
had controlled various parts of Somalia since the collapse of Somalia's central
government. Mr. Elmi was a memberof the Shikal clan and, because of his membership
of this clan, he said that he had been targeted by the dominant Hawiye clan. In
particular, he claimed that his father and brother had been killed and his sister
repeatedly raped, and as a consequence committed suicide, by members of the Hawiye
clan, and that he would be tortured and perhaps killed by that clan if he returned to
Somalia. The Australian government had rejected these claims and his appeals and
requests for judicial review of this decision had all failed.27 Indeed, prior to his
communication to the Committee Against Torture, he had been put on an aircraft to
be sent out of Australia but the pilot had refused to take him.28 Mr. Elmi then sent a
communication to the Committee Against Torture and the Australian government
agreed to a request from the Committee Against Torture to delay deporting Mr. Elmi
until after the Committee Against Torture had considered his communication.29
Mr. Elmi's communication relied on Australia's obligations under Article 3 of the
CAT. Article 3 of the CAT provides:
Australia ratified the CAT on 8 August 1989 and made a declaration under Article 22 of the
CAT on 28 January 1993. See further Lofgren, "Complaint Procedures under Article 22 of
the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment," 1 Australian Journal of Human Rights (1994), 401. The Elmi case is discussed
in Heam and Eastman, "Human Rights Issues for Australia at the United Nations - Australia's
Non-refoulement Obligations under the Torture Convention and the ICCPR," 6 Australian
Journal of Human Rights (2000), 216; and Kinslor, "Non-refoulement and Torture: the
Adequacy of Australia's Laws and Practices in the Safeguarding Asylum-seekers from Torture,"
6 Australian Journal of Human Rights (2000), 161.
The Committee Against Torture in Elmi used the terms 'clan' and 'faction' interchangeably,
Sadiq Shek Elmi v. Australia, supra n. 3, at paras 6.5 and 6.6.
At the time of the communication there remained a possibility of the author appealing to the
High Court of Australia. The State party accepted that it did not wish to contest the admissibility
of the communication on the ground of non-exhaustion of domestic remedies, Sadiq Shek
Elmi v. Australia, supra n. 3, at para. 4.3.
Sadiq Shek Elmi v. Australia, supra n. 3, at para. 2.6: 'On 29 October 1998, the author was
taken to Melbourne Airport to be deported, escorted by guards from the Immigration Detention
Centre. However, the author refused to board the plane. As a result, the captain of the aircraft
refused to take him on board.'
Sadiq Shek Elmi v. Australia, supra n. 3, at para. 4.15. This communication was initiated by
the Refugee & Immigration Legal Centre (Carolyn Graydon) in Melbourne, Australia.
1. No State Party shall expel, return ("refouler") or extradite a person to another

State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
2 For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including, where
applicable, the existence in the State concerned of a consistent pattern of
gross, flagrant or mass violations of human rights.
Although the CAT itself does not expressly provide for the connection, the Committee
Against Torture has made clear that Article 3 of the CAT will be read in relation to the
definition of 'torture' given in Article 1 of the CAT.30 As was seen above, the definition
of 'torture' under Article 1 of the CAT provides that the acts committed must be
'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'. So a State's obligation in
relation to non-refoulement under Article 3 of the CAT only appears to arise when
there are substantial grounds for believing that the person concerned would be in
danger of being subjected to torture by a State official.
The Australian government asked the Committee Against Torture to declare the
communication inadmissible. The government argued that 'these members of armed
Somali clans are not 'public officials' and do not act in an 'official capacity".31 In
making this argument, the government relied on a decision made just one year earlier
by the Committee Against Torture in G.R.B. v. Sweden?1 In that case the author (who
sought asylum in Sweden) said that she would be subjected in Peru to torture by
Sendero Luminoso (Shining Path), a group that had been engaged in a long-term
armed conflict with the Peruvian authorities. The Committee Against Torture stated
that there was no breach of Article 3 of the CAT on the basis that 'whether the State
party has an obligation to refrain from expelling a person who might risk pain or
suffering inflicted by a non-governmental entity, without the consent or acquiescence
of the Government, falls outside the scope of article 3 of the Convention' ,33
Accordingly, the Australian government submitted that, as any acts committed
against Mr. Elmi by the clans would not be by 'a public official or other person acting
in an official capacity', this element of the definition of torture in Article 1 of the CAT
was not present. In the absence of this element, there was no torture within the terms
of Article 1 of the CAT and so the obligation contained in Article 3 of the CAT did
not arise. Hence the government argued that the communication from Mr. Elmi was
30
Committee Against Torture General Comment 1, 'Implementation of Article 3 of the
Convention in the Context of Article 22' (1997), at para. 1; 6 IHRR 599 (1999).
31
Sadiq Shek Elmi v. Australia, supra n. 3, at para. 4.4.
32
G.R.B. v. Sweden (83/1997), 6 IHRR 395 (1999).
33
Ibid, at para. 6.5.
inadmissible.34 The case thus turned on whether the definition of 'torture' under
Article 1 of the CAT could include actions by non-State actors.
In considering this issue, there was considerable reliance placed on the travaux
preparatoires of the CAT.35 As seen in its Preamble, the CAT was drafted in direct
response to the adoption by the General Assembly of the Declaration Against
Torture.36 In defining 'torture' the Declaration Against Torture provided that torture
means 'any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted by or at the instigation of a public official on a person....'.37
When the CAT was drafted there was agreement by all States to extend the scope of
the perpetrator of the act beyond the 'public official' in the Declaration.38 In the
course of the debate on this issue, the representative of the Federal Republic of
Germany considered that any addition to the words of the Declaration was, in any
event, unnecessary, as:
The term "public official" referred not only to persons who, regardless of
their legal status, have been assigned public authority by State organs on a
permanent basis or in an individual case, but also to persons who, in certain
regions or under particular conditions, actually hold and exercise authority
over others and whose authority is comparable to government authority or -
be it only temporarily - has replaced government authority or whose authority
has been derived from such persons.39
The drafting States took the position that it was better to make this expansive coverage
of the term 'public official' explicit by including the words 'other person acting in an
official capacity'. Thus, as the Chairman-Rapporteur for two crucial years of the
drafting process of the CAT noted, '[a]ll such situations where the responsibility of
the authorities is somehow engaged are supposed to be covered by [this] rather
wide phrase appearing in Article I'.40
In the light of this, it was argued by Mr. Elmi's Counsel that the term 'a public
official or other person acting in an official capacity' was included in the CAT
deliberately in order to expand the persons included within the definition of torture
34
The Australian government considered that the communication was inadmissible ratione
materiae (Sadiq Shek Elmi v. Australia, supra n. 3, at para. 4.4). They also argued that in
relation to the merits there were 'no substantial grounds to believe that the author would be
subjected to torture if returned to Somalia' (ibid, at para. 4.9). The Committee Against
Torture chose to consider both arguments at the merits stage (ibid, at para. 6.2).
33
On the use of travaux preparatoires, see Articles 31 and 32 of the Vienna Convention on the
Law of Treaties 1969; 8 ILM 679 (1969).
36
The Preamble of the CAT states: '...Having regard also to the Declaration on the Protection
of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted by the General Assembly on 9 December 1975...'.
37
Declaration Against Torture, supra n. 6, Article 1 (emphasis added).
38
Burgers and Danelius, supra n. 18, at 45.
39
Ibid. See also Sadiq Shek Elmi v. Australia, supra n. 3, at para. 4.7.
" Burgers in Burgers and Danelius, supra n. 18, at 120.
to all persons exercising some form of public authority. It was submitted that it was
possible that other entities within a State that exercised powers equating to State
powers, could be considered to have some official capacity and hence fall within the
meaning of 'a public official or other person acting in an official capacity'. This
coverage would include, as the representative of the Federal Republic of Germany
had suggested, 'persons who, in certain regions or under particular conditions,
actually hold and exercise authority over others and whose authority is comparable
to government authority'.41
In relation to Somalia, it was accepted by both parties that there had been no
recognised government of Somalia, at least since 1991. It was submitted that, since
that time and in certain regions, the clans had fulfilled the role, or exercised the
semblance, of an authority comparable to government authority. For example, these
clans in relation to their regions, prescribed their own laws, their own law-enforcement
mechanisms and provided their own education, health and taxation systems.42
Furthermore, States and international organisations had accepted that these activities
were comparable to governmental authority. For example, the report by the UN Special
Rapporteur on the Situation of Human Rights in Somalia, stated that' [t]he international
community is still negotiating with the warring factions, who ironically serve as the
interlocutors of the Somali people with the outside world'.43
The Committee Against Torture accepted Mr. Elmi's submissions. It noted that
Somalia had been, and was still, without a central government and that some of the
clans or factions had negotiated with the international community and set up quasi-
governmental institutions. On this basis the Committee Against Torture concluded:
It follows then that, de facto, those factions exercise certain prerogatives that
are comparable to those normally exercised by legitimate governments.
Accordingly, the members of those factions can fall, for the purposes of the
application of the Convention, within the phrase "public officials or other
persons acting in an official capacity" contained in article I.44
The Committee Against Torture distinguished G.R.B. v. Sweden because in Elmi

there was a situation in which non-State actors were in effective control and there
was an absence of a central government, from which protection could have been
sought.45 Therefore, as the clans in Somalia did satisfy the third element of the

Ibid, at para. 5.5.
Ibid, citing the UN Special Rapporteur on the Situation of Human Rights in Somalia, Mona
Rishmawi, Oral statement to the United Nations Commission on Human Rights, 55th session,
22 April 1998. See also the Special Rapporteur's report to the Commission on Human
Rights, UN Doc. E/CN.4/1999/103 (1999) and UN Doc. E/CN.4/1999/103.Add.l (1999).
Other courts have considered the situation in Somalia and acted to assist the individual in
most cases, see, for example, Somalia (A Republic) v. Woodhouse, Drake & Carey (Suisse)
SA [1993] 1 All ER 371 (UK High Court).
Ibid, at para. 5.2.
definition of torture in Article 1, then the Committee Against Torture decided that the
obligation under Article 3 of the CAT (non-refoulement) arose for the Australian
government.46 So the Committee Against Torture concluded that actions by non-
State actors could, in certain circumstances, be considered to be sufficiently 'State-
like' to amount to torture under Article 1 of the CAT.
It then remained for the Committee Against Torture to determine if 'there were
substantial grounds for believing that Mr. Elmi would be in danger of being subjected
to torture if returned to Somalia'.47 It considered that such grounds did exist.48
Therefore the legal obligation under Article 3 of the CAT applied and so the Australian
government was obliged to refrain from forcibly returning Mr. Elmi to Somalia.49
OBLIGATIONS OF STATES FOR NON-STATE ACTORS UNDER

INTERNATIONAL HUMAN RIGHTS LAW
The conclusions of the Committee Against Torture in the Elmi case need to be
considered within the context of how international human rights law deals with
actions by non-State actors. Under most treaties and customary international law,
the State is solely responsible for any violation of human rights protected by
international law and must take steps to protect the rights within their national law.50
Further, the actions for which a State is responsible under international law are
usually limited to actions by State officials. The State is not in principle responsible
for the 'actions of private persons or agencies that are incompatible with the
standards of conduct the states observe'.51
This position is consistent with the general principles of State responsibility,
which are that:
[t]he conduct of any State organ shall be considered an act of that State
under international law, whether the organ exercises legislative, executive,
judicial or any other functions, whatever position it holds in the organization
Ibid.
Article 3.1 of the CAT.
Sadiq Shek Elmi v. Australia, supra n. 3, at para. 6.8. One basis for so deciding was due to the
publicity created by the communication itself!
Ibid, at para. 7. At the last time of inquiry in 2001 (more than two years after the Committee
Against Torture's views), Mr. Elmi remains in detention in Australia as the Australian authorities
try to persuade him to go elsewhere. This is an appalling situation in which the Australian
government remains in defiant breach of its clear human rights obligations.
See, for example, Article 2 ICCPR. There is the exception of individual responsibility for
international crimes, as discussed below.
Cook, "State Responsibility for the Violation of Women's Human Rights," 7 Harvard Human
Rights Journal (1994), 125 at 151.
of the State, and whatever its character as an organ of the central government
or of a territorial unit of the State.52
A State is responsible for the actions of these officials even where those actions are
committed outside the scope of the official's apparent authority if they 'acted, at
least apparently, as authorised officials or organs, or that, in so acting, they ... used
powers or measures appropriate to their official character' .53
In international human rights law, this responsibility of a State for actions by
State officials can be engaged by actions, or lack of action, by officials of another
State. It has been consistently held that a State would violate its own human rights
treaty obligations if it returned an individual to another State where there was a real
risk that actions by officials of that other State will violate the prohibition against
torture. For example, in Soering v. UK,5* the European Court of Human Rights (ECtHR),
after referring to the non-refoulement principle in Article 3 of CAT, said:
It would hardly be compatible with the underlying values of the [ECHR], 'that
common heritage of political traditions, ideas, freedom and rule of law' to
which the Preamble [of the ECHR] refers, were a Contracting State knowingly
to surrender a fugitive to another State where there were substantial grounds
for believing that he would be in danger of being subjected to torture, however
heinous the crime allegedly committed.55
Of course, the victim must still prove that torture will occur in that other State.56
There has also been a clarification of the human rights obligations on States in
relation to conduct within the State by non-State actors. For example, in Velasquez
Rodriguez v. Honduras,51 a case involving a disappearance where the prohibition on
torture (as well as other rights) were in issue, the Inter-American Court of Human
Rights held that:
The State is obligated to investigate every situation involving a violation of

rights under the Convention. If the State apparatus acts in such a way that
the violation goes unpunished and the victim's full enjoyment of such rights
Article 4 International Law Commission (ILC) Articles on Responsibility of States for

Internationally Wrongful Acts (formerly State Responsibility), International Law Commission
Report, 531 session, A/CN.4/L.602/Rev. 1, 26 July 2001, available at www.un.org/law/ilc. See
further discussion below. A public or State official would usually include, for example, members
of the State's executive, legislature, judiciary, armed forces, police and security services.
Caire Claim (France v. Mexico) 5 Reports of International Arbitral Awards 516 (1929).
However, 'much depends on the type of activity and the related consequences in the particular
case', Brownlie, Principles of Public International Law, 5* ed. (Oxford: Oxford University
Press, 1998) at 454.
Soering v. UK (1989) 11 EHRR 439.
Ibid, at para. 88.
See, for example, cases before the HRC such as Kindler v. Canada (470/91), 1 IHRR 98
(1994) and Ng v. Canada (469/91), 1 IHRR 161 (1994).
Veldsquez Rodriguez v. Honduras, 28 ILM 294 (1989).
is not restored as soon as possible, the State has failed to comply with its
duty to ensure the free and full exercise of those rights to persons within its
jurisdiction. The same is true when the State allows private persons or groups
to act freely and with impunity to the detriment of the rights recognised in the
Convention.58
So where a State is not directly responsible for the actual violation (such as when it
is caused by a non-State actor) the State can still be held responsible for a lack of
positive action in responding to, or preventing, the violation. In particular, it must
conduct investigations where there have been violations of human rights, no matter
if those violations have occurred by non-State actors over which the State has no
direct control.59 This obligation to investigate is a positive obligation on a State,
demanding considerable State resources, to undertake fact-finding, criminal
investigation and, perhaps, prosecution in a transparent, 'accessible and effective
manner'60 and to provide redress.61 The Committee Against Torture has also determined
that the investigation must be held promptly, as a delay of 15 months before the
commencement of investigations of allegations of torture has been considered
unreasonably long.62 The ECtHR, in cases involving non-state actors, has held that,
where torture is in issue, a State must undertake, 'a thorough and effective
investigation capable of leading to the identification and punishment of those
responsible, including effective access for the complainant to the investigation
procedure'.63
Similarly, in Herra Rubio v. Colombia, the HRC concluded that Colombia had
violated the ICCPR because the State had failed to investigate effectively the murder
or disappearance of the victims, even though those responsible may have not been
State officials.64 This is consistent with the HRC's General Comment on Article 7
(prohibition on torture), where the HRC said '[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'.65
58
Ibid, at para. 176.
59
See also Committee on the Elimination of Discrimination Against Women, General
Recommendation 19, 'Violence against Women' (1992), at para. 9; 1 IHRR 25 (1994).
< Jordan v. UK (App. 24746/94), ECtHR, Judgment of 4 May 2001, at para. 143, where the
ECtHR considered that the conduct of the investigation, the coroner's inquest, delay, the lack
of both legal aid for the victim's family and the lack of public scrutiny of the reasons of the
Director of Public Prosecutions not to prosecute, was a violation of Article 2 of the ECHR.
61
See Clapham, "Revisiting Human Rights in the Private Sphere: Using the ECHR to Protect
the Right of Access to the Civil Court," in Scott (ed.), Torture as Tort: Comparative Perspectives
on the Development of Transnational Human Rights Litigation (Oxford: Hart, 2001), 513.
62
Halimi-Nedzibi v. Austria (8/1991), 1(2) IHRR 190 (1994), at para. 13.5. See also HRC
General Comment 20, supra n. 10, at para. 14 and cf., Jordan v. UK, supra n. 60.
63
Zv UK (App. 29392/95), ECtHR, Judgment of 10 May 2001, at para. 109. See also Keenan
v. UK (App. 27229/95), ECtHR, Judgment of 3 April 2001.
M
Herra Rubio v. Colombia (161/1983), HRC Report, G.A.O.R., 43"1 Sess., Supp. 40, 190, at
para. 11 (1988).
65
General Comment 20, supra n. 10, at para. 2 (emphasis added).
Other international documents have endorsed this obligation on States to

investigate and prosecute violations of human rights66 and some commentators
argue that there is an emerging customary international law obligation to investigate,
prosecute and provide redress.67 Others have called this an obligation of 'due
diligence', which requires a State to exercise due diligence to eliminate, reduce and
mitigate the incidence of private human rights abuses.68 This position has been
supported by the UN Special Rapporteur on Violence against Women who concluded
that '[States] also have an obligation to take preventative and punitive steps where
human rights violations by private actors occur'.69
The ECtHR has held in several cases alleging human rights violations against
Turkey, that the failure of the State's security forces to protect civilians during
internal armed conflict and the inadequacy of subsequent investigations by the
State, amounted to a breach by the State of its obligations under the ECHR.70 It has
also considered the issue of the responsibility of a State for the acts of torture
committed by non-State actors. In HLR v. France1* the applicant had been arrested
and convicted in France of trafficking in drugs. He was subject to a deportation order
to return to Colombia. However, while in France he had supplied the police with
information that had led to an arrest and he feared reprisals from drug traffickers in
Colombia. Despite not finding for the applicant on the facts, the ECtHR rejected the
French government's submission that since the risk of torture, inhuman or degrading
treatment relied on by the applicant did not stem from the Colombian authorities
themselves, the case could not be considered under Article 3 of the ECHR, which
prohibits torture. Instead the ECtHR held that:
Owing to the absolute character of the right guaranteed, the Court does not
rule out the possibility that Article 3 of the Convention may also apply where
the danger emanates from persons or groups of persons who are not public
For example, Principles on the Effective Prevention and Investigation of Extra-Legal,

Arbitrary and Summary Executions, UN General Assembly Resolution 44/162 of 15 December
1989; Inter-American Convention on the Forced Disappearance of Persons 1994, 33 ILM
1529 (1994).
See Rhot-Arriaza, "State Responsibility to Investigate and Prosecute Grave Human Rights
Violations in International Law," 78 California Law Review (1990), 449; Mendez,
"Accountability for Past Abuses," 19 Human Rights Quarterly (1997), 261. C/., Orentlicher,
"Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," 100
Yale Law Journal (1991), 2537.
Cook, supra n. 51, at 151, citing Moore, 1 International Arbitration 495 (1872) (on duty of
due diligence to observe international law when the breach originated in private conduct). See
also UN Declaration on the Elimination of Violence Against Women 1993, GA Resolution
48/104 of 20 December 1993; 33 ILM 1049 (1994).
Report of the UN Special Rapporteur on Violence against Women, Radhika Coomaraswamy,
UN Doc. E/CN.4/1996/53 (1996) at para. 31.
For example, Ergi v. Turkey (App. 23818/94), ECtHR, Judgment of 28 July 1998; and
Timurtas v. Turkey (App. 23531/94), ECtHR, Judgment of 13 June 2000.
HLR v. France (1998) 26 EHRR 29.
officials. However, it must be shown that the risk is real and that the authorities
of the receiving State are not able to obviate the risk by providing appropriate
protection.72
So State parties are under an obligation not to extradite or expel a person who may be
subject to torture or inhuman or degrading treatment or punishment that violates
Article 3 of the ECHR. This obligation extends to action by non-State actors,
particularly when the State to which the person is being extradited is unable or
unwilling to protect that person from actions by those non-State actors.
In Ahmed v. Austria the ECtHR had to consider a case based on very similar
facts to that of Elmi. A Somali man had sought refugee status in Austria due to his
fear of persecution by clans in Somalia. The Austrian government granted him this
status initially but then revoked it when he was convicted of armed robbery. The
ECtHR noted that 'fighting was going on between a number of clans vying with each
other for control of the country. There was no indication that the dangers to which
the applicant would have been exposed to had ceased to exist or that any public
authority would be able to protect [the applicant]'.74
On this basis the ECtHR held that 'the applicant's deportation to Somalia would
breach Article 3 of the Convention for as long as he faces a serious risk of being
subjected there to torture or inhuman or degrading treatment', irrespective of the
identity of the likely perpetrators of such acts.75 The ECtHR concluded that the
dangers that the applicant faced in Somalia were greater than the seriousness of his
offence, particularly as Article 3 of the ECHR has no limitations on its exercise, and
so there would be a violation of Article 3 of the ECHR by Austria if they sent Mr.
Ahmed back to Somalia.76
Subsequently, in A v. UK,17 the ECtHR found that the failure by the State to
punish the act of caning a child by his stepfather violated Article 3 of the ECHR. The
main issue in this case was the liability of a State party for acts of a non-State actor
within that State. This is in contrast to most of the previous cases that dealt with
actions of non-State actors in another State, which gave rise to non-refoulement
obligations.78 The ECtHR found that, in the circumstances, the failure to provide
72
Ibid, at para. 40. See also Osman v. UK (1998) 29 EHRR 245 at para. 115 (in relation to the
right to life).
73
Ahmed v. Austria (1997) 24 EHRR 278.
74
Ibid, at para. 44.
75
Ibid, at para. 47.
76
Ibid, at para. 40.
77
A v. UK (1999) 27 EHRR 611.
78
It could be argued that an international supervisory body may be more willing to find a State
in violation of a non-refoulement obligation due to the likelihood of torture in another State
(albeit by non-State actors) as against finding a State itself to be in violation of the prohibition
on torture due to actions by non-State actors in its own territory.
adequate protection constituted a violation of Article 3 of the ECHR.79 Significantly,

it was not held that the State had control over the caning, rather the State's control
was over its national law and so it had an obligation to ensure that the child would be
protected by the law from the actions of the stepfather.80 As the national law allowed
for 'reasonable chastisement', which had resulted in the stepfather being found not
guilty under UK law, the State had failed to protect the child and so was in breach of
the ECHR. As the ECtHR held:
The Court considers that the obligation on the High Contracting Parties
under Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the Convention, taken together
with Article 3, requires States to take measures designed to ensure that
individuals within their jurisdiction are not subjected to torture or inhuman or
degrading treatment or punishment, including such ill-treatment administered
by private individuals.81
The ECtHR also considered that '[c]hildren and other vulnerable individuals, in
particular, are entitled to State protection, in the form of effective deterrence, against
such serious breaches of personal integrity' ,82 This clearly makes a State responsible
under international human rights law for its actions or inaction arising from activities
of non-State actors. Thus the cases of Ahmed v. Austria, A v. UK and HLR v. France
clarify that a State has an obligation to protect individuals from violations of torture,
and an obligation of non-refoulement,83 including where those violations are
perpetrated by non-State actors.
Similar approaches can be seen in the interpretation of the Convention relating to
the Status of Refugees 1951 (Refugee Convention).84 The Refugee Convention does
not require actions solely by State officials to give rise to the requisite well-founded
fear of persecution,85 as '[w]here serious discriminatory or other offensive acts are
A v. UK, supra n. 77, at para. 24. See also Ghandhi and James, "Parental Rights to Reasonable
Chastisement and the European Court of Human Rights," 3 International Journal of Human
Rights (1999), 97; Alleweldt, "Protection Against Explusion Under Article 3 of the European
Convention on Human Rights," 4 European Journal of International Law (1993), 360; and
Smith, "To Smack or Not to Smack? A Review of A v United Kingdom in an International
and European Context and its Potential Impact on Physical Parental Chastisement," [1999]
1 Web Journal of Current Legal Issues, available at http://webjcli.ncl.ac.uk.
Smith, ibid.
A v. UK, supra n. 77, at para. 22.
Ibid, at para. 22.
The HRC has confirmed the obligation of non-refoulement under Article 7 ICCPR, HRC
General Comment 20, supra n. 10, at para. 9. See also Modise v. Botswana, Communication
97/93, 9 IHRR 209 (2002), where the African Commission on Human and Peoples' Rights
found that deportation would constitute cruel and inhuman treatment in that case.
Convention relating to the Status of Refugees 1951, 189 UNTS 150, as amended by Protocol
Relating to the Status of Refugees 1967, 606 UNTS 267.
Article 1A Refugee Convention 1951.
committed by the local populace, they can be considered as persecution [under the
Refugee Convention] if they are knowingly tolerated by the [State] authorities, or if
the authorities refuse, or prove unable, to offer effective protection'.86 However,
many of the same issues arise for refugees as they do under the general human rights
treaties, in relation to the roles of the State and non-State actors.87 For example, in R.
Secretary of State for the Home Department, exparte Adan the United Kingdom's
House of Lords considered a case where a Somali woman and an Algerian man
sought asylum in the UK. In this case, each had previously sought asylum in Germany
and France respectively and had been refused but the UK government sought to
return them to those States. Lord Slynn summarised the position:
It is common ground that if each of the appellants were sent back to the
countries from which immediately they came to the United Kingdom, Germany
would probably send back Adan to Somalia and France would probably send
back Aitseguer to Algeria. Germany would do so because it considered that
there was no state or government in Somalia which could carry out the
persecution. France because it considered that the "persecution" which he
feared was not tolerated or encouraged or threatened by the state itself. Thus
in each case it was not conduct for which the state was accountable. It is also
common ground that the United Kingdom would not send them back directly
to Somalia and Algeria respectively if it was accepted that each was outside
the country of his nationality owing to "a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular
social group or political opinion" (see Geneva Convention relating to the
Status of Refugees 1951, Article 1A). Thus even though the persecution was
not threatened by the state or by an agency for which the state was
responsible, Adan would not be sent back if the threat was from a rival clan to
that to which Adan belonged and if the threat to Aitseguer was from the
Groupe Islamique Arme in Algeria.89
The issue was whether the positions taken by the German and French governments
were 'consistent with the true and international interpretation of the [Refugee]
Convention' because, if they were, then the UK government would be justified in
returning both applicants to those States.90 The House of Lords held, unanimously,
UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining
Refugee Status, HCR/IP/4/Eng/Revl (1992) at para. 65.
Due to the lack of general international supervisory mechanisms under the Refugee
Convention, many issues arising from the refugee process have been taken to the international
human rights treaty supervisory bodies, such as happened in the Elmi case.
R. Secretary of State for the Home Department, ex pane Adan, [2001] 1 All ER 593.
Ibid, per Lord Slynn at 596.
Ibid, per Lord Steyn at 602.
that those positions were not the correct interpretation of the Refugee Convention
and so the UK could not lawfully return the applicants to those States. Lord Steyn
added, 'I would hold that there is no material distinction between a country where
there is no government (like Somalia) and a country when the government is unable
to afford the necessary protection to citizens (such as Algeria). Both are covered by
article 1A(2)'.91
While this case is not an interpretation of the international human rights
obligations of a State in relation to the prohibition on torture, it indicates that the
development of international law in this general area has created international human
rights obligations on States to protect individuals against actions by non-State
actors. It also draws a cogent analogy with the position in Elmi to deal with a
situation where there is a government but that government is unable to protect the
human rights of all those within its jurisdiction.
What can be seen from the above jurisprudence is a development in the
international human rights obligations of a State from obligations only for actions of
its own State officials to obligations in relation to actions by officials of other States,
such as not to extradite individuals who face the death penalty. There are also
obligations in relation to non-State actors within a State's own jurisdiction, which
require a State to conduct investigations into the actions of non-State actors. Now
there are obligations of a State in relation to actions by non-State actors in other
States, with those obligations being primarily ones of non-refoulement in situations
where the other State is unable to protect an individual from torture by non-State
actors. These developments in the obligations on States in relation to violations of
human rights by non-State actors arise because the relevant State has not acted
effectively to prevent or investigate the action by the non-State actors. Whilst Elmi
dealt with the situation where there was no government at all, other cases have
applied these obligations where there is a government but that government was not
able to protect individuals from violations of the prohibition on torture. In all cases,
it has been the State that has been found in violation of international human rights
legal obligations and not the non-State actor.
ACQUIESCENCE BY STATES IN VIOLATIONS OF

INTERNATIONAL HUMAN RIGHTS LAW BY NON-STATE ACTORS
The obligations on a State to investigate violations of human rights by non-State

actors usually arises when a State has allowed, whether or not deliberately, a situation
to occur where non-State actors are able to violate human rights. As the Inter-
American Court of Human Rights said in Velasquez Rodriguez v. Honduras:
If the State apparatus acts in such a way that the violation goes unpunished
and the victim's full enjoyment of such rights is not restored as soon as
possible, the State has failed to comply with its duty to ensure the free and
" Ibid, per Lord Steyn at 608.

full exercise of those rights to persons within its jurisdiction. The same is true
when the State allows private persons or groups to act freely and with
impunity to the detriment of the rights recognised in the Convention.92
This has been supported by the HRC93 and it was the express obligation under
Article 3 of the ECHR to 'ensure the protection of rights' that was a part of the
ECtHR's reasoning in extending the obligations on States to include actions by non-
State actors.94 It is also consistent with the general rejection of impunity as being
contrary to international human rights law.95
This issue of a State having international human rights obligations when it allows
non-State actors to operate without restraint, and hence leading to human rights
violations, is relevant to obligations under the CAT. Article 1 of the CAT provides
that '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'.
While there is no clear definition of 'acquiescence' under the CAT, it would be
consistent with the interpretations in the other relevant human rights treaties (as
shown above) for it to include the situation where a State allows non-State actors to
operate with impunity and so be able to violate human rights. The issue of the State
having actual knowledge of the particular violation at the time it was committed is
not crucial.96 Thus where there is no protection offered to an individual by a State
from the actions of a non-State actor who intentionally inflicts physical and/or mental
pain and suffering on that individual for some purpose such as intimidation, then it
could amount to 'acquiescence' for the purposes of Article 1 of the CAT.97 This
acquiescence would include the situation where a State either lacks effective control
over its territory or deliberately takes no action in relation to the activities of non-
State actors that violate human rights. By this means, the CAT extends die obligations
of States in relation to torture to the actions of non-State actors.
Veldsquez Rodriguez v. Honduras, supra n. 57, at para. 176 (emphasis added).

HRC General Comment 20, supra n. 10, at para. 15.
See A v. UK, supra n. 77, at para. 22.
See Barrios Altos v. Peru, Inter-American Court of Human Rights Judgment, 14 March 2001,
in which the Court stated that self-amnesty laws are 'manifestly incompatible [with the
ACHR as they] lead to the defenselessness of victims and perpetuate impunity'.
This is implied in the criticism of impunity laws made by the Committee Against Torture. See
concluding observations of the Committee Against Torture on Colombia and Senegal, UN
Doc. A/51/44 (1996) at paras 80 and 112. See also cases and concluding observations of the
HRC referred to in Joseph, Schultz and Castan, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary (Oxford: Oxford University Press, 2000)
at 177-183 and the quoted section of the UNHCR Handbook on Refugee Status, supra in the
text accompanying n. 86.
The Inter-American Convention to Prevent and Punish Torture 1986 applies to a public
official who 'being able to prevent [the use of torture] fails to do so', Article 3(a); 25 ILM
519 (1986). Rodley considers that 'government officials at all levels may be held responsible
if they fail to stop torture where it occurs. Failure so to act could well be interpreted at least
as acquiescence', Rodley, The Treatment of Prisoners Under International Law, 2nd ed. (Oxford:
Clarendon Press, 1999) at 100.
An example of how a State's acquiescence of the activities of non-State actors

can give rise to international human rights obligations is seen in the House of Lords
case of Islam v. Secretary of Statefor the Home Department.9* In considering whether
another State's policy of impunity could lead to an individual's well-founded fear of
persecution from non-State actors, being domestic violence in this case, sufficient to
give rise to a successful application for asylum in the UK, Lord Hoffman drew the
following analogy:
Suppose oneself in Germany in 1935...[and] suppose that the Nazi government

in those early days did not actively organise violence against Jews, but
pursued a policy of not giving any protection to Jews subjected to violence
by neighbours. A Jewish shopkeeper is attacked by a gang organised by an
Aryan competitor who smash his shop, beat him up and threaten to do it
again if he remains in business. The competitor and his gang are motivated
by business rivalry and a desire to settle old personal scores, but they would
not have done what they did unless they knew that the authorities would
allow them to act with impunity. And the ground upon which they enjoyed
impunity was that the victim was a Jew. Is he being persecuted on grounds of
race? Again, in my opinion, he is. An essential element in the persecution, the
failure of the authorities to provide protection, is based upon race. It is true
that one answer to the question 'Why was he attacked?' would be 'because
a competitor wanted to drive him out of business.' But another answer, and in
my view the right answer in the context of the [Refugee] Convention, would
be 'he was attacked by a competitor who knew that he would receive no
protection because he was a Jew'.99
On this basis, if there is a lack of protection of an individual by a State from actions

by non-state actors then that State is deemed to acquiesce in the situation. Provided
that the remaining aspects of the definition are satisfied, then there would be 'torture'
under Article 1 of the CAT.
This approach to Article 1 of the CAT is of particular importance to women. As
one commentator has noted, '[Article 1 of the CAT] includes state "acquiescence"
as a mechanism of state responsibility. Not only does such language grant the
Committee licence to consider information about domestic violence in which state
acquiescence has been persuasively demonstrated; it compels the Committee to do
so'. l0 The HRC hinted at a similar approach when it issued its General Comment on
Article 3 of the ICCPR (equality of rights between men and women). It said:
98
Islam v. Secretary of State for the Home Department [1999] 2 AC 629. See commentary on
this case by Mathew, in 95 American Journal of International Law (2001), 671.
99
Ibid, per Lord Hoffman at 653-4.
100
Kois, "Dance, Sister, Dance!," in Duner, supra n. 16, 85 at 104.
To assess compliance with article 7 of the Covenant, as well as with article 24,
which mandates special protection for children, the Committee needs to be
provided with information on national laws and practice with regard to domestic
and other types of violence against women, including rape.. .In States parties
where the practice of genital mutilation exists information on its extent and on
measures to eliminate it should be provided. The information provided by
States parties on all these issues should include measures of protection,
including legal remedies, for women whose rights under article 7 have been
violated.101
This General Comment indicates that the failure of a State to protect women from
torture in the private sphere, where the harm is particular to them, is a form of inequality.
Further, the UN Special Rapporteur on Violence against Women has concluded that
the violence that women suffer is most often from non-State actors, with the State
taking no action:
Perhaps the greatest cause of violence against women is government inaction

with regard to crimes of violence against women. There appears to be a
permissive attitude, a tolerance of perpetrators of violence against women,
especially when this violence is expressed in the home. The seriousness of
the crime is rarely acknowledged. There exists also non-recognition of such
crimes in the laws of many countries, especially in relation to domestic
violence, marital rape, sexual harassment and violence associated with
traditional practices. As a result, in most societies crimes of violence against
women are invisible. In addition, even where crimes of violence against women
are recognized in the law, they are rarely prosecuted with vigour.102
Her conclusions are supported by a wealth of literature on the rights of women in

relation to domestic violence.103
This inaction by States, as indicated by the UN Special Rapporteur on Violence
against Women, can be considered to be a violation of a State's obligations by being
HRC General Comment 28, 'Equality of Rights Between Men and Women (Article 3)'
(2000), at para. 11; 8 IHRR 303 (2001).
Preliminary Report submitted by the UN Special Rapporteur on Violence against Women,
Radhika Coomaraswamy, UN Doc. E/CN.4/1995/42 (1994) at para. 72.
See, for example, Copelon, "Recognizing the Egregious in the Everyday: Domestic Violence
as Torture," 25 Columbia Human Rights Law Review (1994), 291; Byrnes, "Women, Feminism
and International Human Rights Law - Methodological Myopia, Fundamental Flaws or
Meaningful Marginalisation," 12 Australian YearBook of International Law (1992), 205;
Kois, supra n. 100; Thomas and Beasley, "Domestic Violence as a Human Rights Issue," 15
Human Rights Quarterly (1993), 36; Cook, supra n. 51; and, generally, Cook (ed.), Human
Rights of Women: National and International Perspectives (Philadelphia: University of
Pennsylvania Press, 1994). See also, the excellent book, Charlesworth and Chinkin, The
Boundaries of International Law: A Feminist Analysis (Manchester: Manchester Press, 2000),
especially chapter 7.
acquiescent in actions by non-State actors, including actions that could amount to

torture.104 Domestic violence can, depending on its severity and the circumstances,
meet the first two elements of the definition of torture in Article 1 of the CAT.l05 If the
victim is raped or suffers other forms of domestic violence and the State has laws
that exempt marital rape, allow for the defense of honour or there is evidence of a
practice of non-prosecution of domestic violence, then this would amount to State
acquiescence.106 That State could then be found in violation of the prohibition of
torture under Article 1 of the CAT.
This approach could open new possibilities for the protection of women from
torture.l07 For example, one of the cases referred to in Elmi was G.R.B. v. Sweden,108
where non-State military groups had raped the victim and she feared reprisals by this
group on her return from Sweden to Peru. The State party argued that the government
of Peru itself would not perpetrate torture and that she had an internal flight option.
However, in the course of her evidence it was submitted that this rape had been
reported to the police but 'they did not show any interest in the matter'.109 The State
party did not submit any evidence that investigations had been carried out but
simply said that the victim had an internal flight option and that the rape was
considered a criminal activity not attributable to the State authorities.110 As seen
above, the Committee against Torture did not deal with the issue of State acquiescence
but rather concluded that 'whether the State party has an obligation to refrain from
expelling a person who might risk pain or suffering inflicted by a non-governmental
entity, without the consent or acquiescence of the Government, falls outside the
scope of article 3 of the Convention'."1
In the light of its conclusions in Elmi and the approach to interpreting
'acquiescence' suggested above, there is a strong argument that the Committee
against Torture in G.R.B. v. Sweden could have remained faithful to the limitations on
the perpetrator under Article 1 of the CAT (being 'public officials') but still analysed
the facts by reference to 'acquiescence'. This approach would have required the
Committee against Torture to decide whether the government of Peru had properly
investigated the rape, how many rapes reported had not been investigated and
m
Byrnes, ibid.
105
Report submitted by the UN Special Rapporteur on Violence against Women, Radhika
Coomaraswamy, UN Doc. E/CN.4/1999/68 (1999) at paras 17 and 42-50. However, one act
of domestic violence by itself would not necessarily be considered to be 'acquiescence'
without examining the context of the State's general practice.
106
See R v. R [1992] 1 AC 599 (UK House of Lords); and Copelon, supra n. 103, at 355.
107
See also Article 3 Inter-American Convention on the Prevention, Punishment and Eradication
of Violence Against Women 1994, 33 ILM 1534 (1994), which provides: 'Every woman has
the right to be free from violence in both the public and the private spheres'; and Amnesty
International, "Respect, Protect, Fulfil - Women's Human Rights and State Responsibility
for Abuses by 'Non-State Actors'," available at www.web.amnesty.org/ai.nsf/Index/
IOR5000012000.
108
G.R.B v. Sweden, supra n. 32.
109
Ibid, at para. 2.3.
110
Ibid, at para. 4.10.
111
Ibid, at para. 6.5.
whether the non-State actors were able to rape due to the lack of State action. These
issues were not apparently argued and the question of whether there was State
acquiescence in the rape remained unanswered. However, such an approach opens
up the possibility of the lives of woman in the so-called 'private' sphere receiving
international human rights protection under the CAT.112 It also significantly extends
the obligations of States to protect individuals from torture by non-State actors.
One other case should be mentioned, as it extends the obligations of States
where there is no action either by a State actor or by a non-State actor. In D v. UK113
the applicant suffered from the advanced stages of AIDS and had only a short time
to live. He had been convicted of possession of drugs and, after serving his sentence,
was to be deported to St. Kitts. It was argued before the ECtHR that if the applicant
were returned to St. Kitts he would probably be homeless, have no access to any
appropriate treatment or palliative care available in the UK and would risk infection,
which would hasten his inevitable death. The ECtHR held unanimously, that, in
these circumstances, the UK had an obligation not to return the applicant to St Kitts,
otherwise it would be in breach of Article 3 of the ECHR, even though the risk to the
applicant did not emanate from either the State or any individual. The ECtHR said:
It is true that this principle has so far been applied by the Court in contexts in
which the risk to the individual of being subjected to any of the proscribed
forms of treatment emanates from intentionally inflicted acts of the public
authorities in the receiving country or from those of non-State bodies in that
country when the authorities there are unable to afford him appropriate
protection (see, for example, the Ahmed judgment, para. 44). Aside from these
situations and given the fundamental importance of Article 3 in the Convention
system, the Court must reserve to itself sufficient flexibility to address the
application of that Article in other contexts which might arise. It is not therefore
112
Other treaties arguably protect women in the private sphere. See, for example, the Convention
on Elimination of All Forms of Discrimination Against Women 1979, 1249 UNTS 13. The
UN Special Rapporteur on Violence against Women, Radhika Coomaraswamy, has stated
that, '[i]n addressing violence in the family, State-tolerated violence intended to control
women in their so-called private lives has thus far not been accounted for. The rhetoric of
public versus private and the consequent primacy afforded to the public realm has fundamentally
affected perceptions of women's rights. In distinguishing certain forms of violence as domestic
violence, definitions have arisen out of the original conceptualization of such violence as
private acts within the family. However, an inflexible definition of domestic violence, focusing
solely on private actors, legitimizes the public/private dichotomy. This construction has
continually been challenged and critiqued by women's human rights activists, not least because
it neglects a gender-specific dimension. Thus, the development of a comprehensive framework
clearly depicting the relation between the nature of the violence perpetrated against women
and their private personae is important in an effort to move beyond a private/public distinction
in addressing violence', Report of the UN Special Rapporteur on Violence against Women,
Radhika Coomaraswamy, supra n. 69, Chapter 11, at para. 26.
113
D v. UK (1997) 24 EHRR 423.
prevented from scrutinising an applicant's claim under Article 3 where the

source of the risk of proscribed treatment in the receiving country stems from
factors which cannot engage either directly or indirectly the responsibility of
the public authorities of that country, or which, taken alone, do not in
themselves infringe the standards of that Article. To limit the application of
Article 3 in this manner would be to undermine the absolute character of its
protection. In any such contexts, however, the Court must subject all the
circumstances surrounding the case to a rigorous scrutiny, especially the
applicant's personal situation in the expelling State."4
While the ECtHR made clear that this was an exceptional case,"5 what is significant
is that the ECtHR acknowledged that the risk did not emanate from the State authority
or a non-State actor and yet it considered that Article 3 of the ECHR applied. This
approach seems to be based on a flexible and victim-oriented application of Article 3
of the ECHR."6 It is a clear extension of the obligations on a State in relation to the
prohibition against torture.
OBLIGATIONS UNDER INTERNATIONAL CRIMINAL LAW
Direct obligations on non-State actors, or what is usually called individual

responsibility under international law, have been traditionally seen as an exception
to the general international law on State responsibility discussed above."7 As the
Nuremberg Judgment noted, '[c]rimes against international law are committed by
men, not by abstract entities [of States], and only by punishing individuals who
commit such crimes can the provisions of international law be enforced'."8
With the creation of the two ad hoc tribunals,"9 the adoption of the International
Ibid, at para. 49.

Ibid, at para. 53.
See, for example, Addo and Grief, "Does Article 3 of the European Convention on Human
Rights Enshrine Absolute Rights?," 9 European Journal of International Law (1998), 510.
See, for example, Dinstein, "International Criminal Law," 5 Israel Yearbook on Human
Rights (1975), 55; McCormack and Simpson (eds.), The Law of War Crimes: National and
International Approaches (The Hague: Kluwer Law International, 1996); and Ratner and
Abrams, Accountability for Human Rights Atrocities in International Law, 2d ed. (Oxford:
Oxford University Press, 2001).
Judgment of the International Military Tribunal, Nuremberg (1946) at 117, 41 American
Journal of International Law (1946), 172.
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991 (ICTFY), 32 ILM 1192 (1993); and International Criminal Tribunal for the Prosecution
of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian
Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for Genocide
and other such Violations committed in the Territory of Neighboring States, between 1
January 1994 and 31 December 1994 (ICTR), 33 ILM 1602 (1994).
Criminal Court Statute120 and the likely establishment of relevant courts,121 there is
growing jurisprudence on international war crimes. A discussion of international
criminal law and individual responsibility is beyond the scope of this article, as the
focus here is on the actions of non-State officials in relation to acts of torture under
international human rights law. Nevertheless, one case should be briefly considered:
Prosecutor v. Furundzija?22 a case before the International Criminal Tribunal for the
Former Yugoslavia (ICTFY).
Furundzija was a local commander of the Jokers, a special unit that was a part of
the armed forces of the Croatian Defense Council, which was in armed conflict with
the government forces in Bosnia and Herzegovina. One of the charges he faced was
torture,123 with the jurisdiction to try him deriving from Article 3 of the ICTFY Statute.124
In determining the elements of the crime of torture, the ICTFY decided, as discussed
above, that Article 1 of CAT represented customary international law.125 In dealing
with the issue of the perpetrators of torture, the ICTFY considered 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'.126
In this instance, neither Furundzija nor the Jokers (or the Croatian Defense
Council) were public officials. Yet the ICTFY held that during the course of the armed
conflict they were acting as an 'authority-wielding entity' and so could be
120
Rome Statute of the International Criminal Court, 37 ILM 999 (1998); 6 IHRR 232 (1999).
This Court will have jurisdiction over the crime of torture (for example Articles 7(l)(f),
7(2)(e), 8(2) (a)(ii) and 8(2)(c)(i).)). At this stage the final elements of the crime have not
been approved. For a general discussion of the International Criminal Court and torture see
the Interim Report submitted by the UN Special Rapporteur on the question of torture and
other cruel, inhuman or degrading treatment or punishment, Nigel Rodley, UN Doc. A/54/
426 (1999) at paras 57- 59.
121
For example, the Special Court for Sierra Leone established pursuant to Security Council
Resolution 1315 of 14 August 2000; 40 ILM 248 (2000). See Cryer, "A Special Court for
Sierra Leone?," 50 International and Comparative Law Quarterly (2001), 435.
122
Prosecutor v. Furundzija, supra n. 9.
123
Furundaja was charged in Counts 13 and 14 with a violation of the laws or customs of war
(torture and outrages upon personal dignity, including rape). See Murphy, "Progress and
Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia," 93 American
Journal of International Law (1999), 57; and Askin, "Sexual Violence in Decisions and
Indictments of the Yugoslav and Rwandan Tribunals: Current Status," 97 American Journal
of International Law (1999), 97 at 111.
124
Torture is not specifically prohibited under Article 3 of the ICTFY Statute. However, in its
Decision On The Defendant's Motion To Dismiss Counts 13 and 14 of The Indictment, issued
on 29 May 1998, the Tribunal held that Article 3 of the Statute ('persons violating the laws
or customs of war') covers torture and outrages upon personal dignity including rape, and that
the Trial Chamber has jurisdiction over alleged violations of Article 3 of the Statute, Prosecutor
v. Furundzija, supra n. 9, at para. 14.
125
Prosecutor v. Furundzija, supra n. 9, at para. 161.
126
Ibid, at para. 162.
perpetuators of torture.127 In addition, in determining if Furundiija's actions could

amount to torture, the ICTFY decided that '[t]he nature of the crime and the forms
that it takes, as well as the intensity of international condemnation of torture, suggest
that in the case of torture all those who in some degree participate in the crime and in
particular take part in the pursuance of one of the underlying purposes are equally
liable' ,128 The ICTFY concluded that Furundzija was guilty of torture, including by
rape.129
In that case the ICTFY showed a willingness to give Article 1 of the CAT a broad
interpretation that allowed it to include non-State actors, who were exercising de
facto control and authority. They did this by the device of considering the non-State
actors as being 'authority-wielding' entities. This is much the same approach as that
taken by the Committee Against Torture in Elmi in respect of the non-State actors in
Somalia. In both cases the issue was one where the torture could only have been
committed - or feared that it would be committed - if the non-State actors were
deemed to be acting as if they were State officials, due to the wording of Article 1 of
the CAT. The consequences in Elmi was that a State, Australia, was held to have
obligations not to send an individual back to the jurisdiction of those non-State
actors, whilst the consequences in Furundzija was that one of the non-State actors
himself was directly responsible under international law.
IMPLICATIONS FOR THE INTERNATIONAL LEGAL SYSTEM
The Committee Against Torture recognised that its approach in Elmi raised 'issues
of principal importance'.130 While this is true for clarification of the obligations under
CAT and, as has been shown, under international human rights treaties, it could also
be indicative of its importance to the international legal system generally.
The International Law Commission (ILC) changed the wording of Article 9 of its
(Draft) Articles on Responsibility of States for Internationally Wrongful Acts
subsequent to Elmi.m Article 9 now provides:
[t]he conduct of a person or group of persons shall be considered an act of a

State under international law if the person or group of persons is in fact
127
The ICTFY considered the aspect of the relationship of control of these military units by a
State in Prosecutor v. Tadic, Appeals decision, 15 July 1999, at para. 137; 38 ILM 1518
(1999). The Appeals Chamber took 'the view that international rules do not always require
the same degree of control over armed groups or private individuals for the purpose of
determining whether an individual not having the status of a State official under internal
legislation can be regarded as a de facto organ of the State. The extent of requisite control
varies'. See also Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).
128
Prosecutor v. Furundzija, supra n. 9, at para. 254.
129
Ibid, at paras 264-275.
130
Committee against Torture, note on 22"d session, at para. 14, available at www.unhchr.ch/
html l/menu2/6/cat/catnote. htm.
131
Though no reference to the Elmi case was made or can be inferred.
exercising elements of the governmental authority in the absence or default

of the official authorities and in circumstances such as to call for the exercise
of those elements of authority.132
The word 'default' was added specifically to cover 'cases where [official authorities]
are incapable of taking any action.' 133 This approach is consistent with the
jurisprudence of the international human rights supervisory bodies discussed above.
This development by the ILC is important as ILC (Draft) Articles are often seen as
codifications of customary international law or, at least, as a clear indication of where
international law will develop.134
Another area of international law that is relevant to this article concerns the roles
of transnational corporations (TNCs). An example of the relevance is seen in the
increasing privatisation by the State of its traditional functions, such as the provision
of water, health care, education, police and prisons, so that these functions and
services are now in the control of TNCs.135 It could be argued, following Elmi, that
these TNCs are now exercising 'certain prerogatives that are comparable to those
normally exercised by legitimate governments'.136 Interestingly, the European
Commission on Human Rights, when dealing with whether a State was responsible
for acts of an international organisation of which it was a member, held that, 'a
transfer of powers does not necessarily exclude a State's responsibility under the
[ECHR] with regard to the exercise of the transferred powers. Otherwise the guarantees
of the Convention could wantonly be limited or excluded and thus deprived of their
peremptory character.'l37
By analogy, States could have obligations for those TNCs that are acting in an
equivalent way to State officials and also where there is State acquiescence in the
activities of the TNCs sufficient to make the State responsible for actions of TNCs
that violate human rights. So far, the direct obligations remain on States, despite the
often unequal power between States and TNCs.138 As a consequence, there has
Article 9, ILC Articles on Responsibility of States for Internationally Wrongful Acts, supra
n. 52 (emphasis added).
Statement by Chairman of Drafting Committee to ILC at its 53 rd meeting, May 2001,
available at www.un.org/law/ilc/sessions/53/53sess.htm.
See Brownlie, who notes that 'a report of the International Law Commission ... may stand
for a threshold of consensus and confront States in a significant way', Brownlie, supra n. 53,
at 2 and see further at 30.
See Alston, "The Myopia of Handmaidens: International Lawyers and Globalization," 8
European Journal of International Law (1997), 435; and McCorquodale with Fairbrother,
supra n. 21.
M & Co. v. Federal Republic of Germany (App. 13258/87), 33 Yearbook ECHR (1990), 46
at para. 73. This position was confirmed by the ECtHR in Matthews v. UK (App. 24833/94),
ECtHR, Judgment of 18 February 1999, at para. 32.
See McCorquodale, "Human Rights and Global Business," in Bottomley and Kinley, Commercial
Law and Human Rights (UK: Ashgate, 2001); and Addo (ed.), Human Rights Standards and
the Responsibility of Transnational Corporations (The Hague: Kluwer Law International,
1999).
been an increasing amount of energy expended in developing international legal

obligations directly on TNCs, particularly in relation to their actions that affect the
environment, labour and human rights.139 In addition, there are a number of national
court decisions that allow the possibility of TNCs being accountable for breaches of
international law.140 It is, therefore, a real possibility that States will, in time, make
TNCs, as non-State actors, have direct obligations for violations of international law
in the same way as States decided to create direct obligations for themselves for
violations of human rights.141
The terrorist actions in the United States of America on 11 September 2001 have
given rise to some Resolutions by the UN Security Council that could be seen to
extend the obligations of States in regard to non-State actors. In Resolution 1368
(2001) the Security Council stated that it regarded 'such acts [as those on 11
September], like any act of international terrorism, as a threat to international peace
and security'.142 It went on to state that it 'stresses that those responsible for aiding,
supporting or harbouring the perpetrators, organizers and sponsors of these acts
will be held accountable'.143 In Resolution 1373 (2001), the Security Council, after
reaffirming Resolution 1368, went further:
Every State has the duty to refrain from organizing, instigating, assisting or
participating in terrorist acts in another State or acquiescing in organized
activities within its territory directed towards the commission of such acts144
... [and the Security Council]...
[d]eclares that acts, methods, and practices of terrorism are contrary to the
purposes and principles of the United Nations and that knowingly financing,
planning and inciting terrorist acts are also contrary to the purposes and
principles of the United Nations.145
139
See, for example, The Realization of Economic Social and Cultural Rights: The Question of
Transnational Corporations, Report of the Sessional Working Group Report on the working
methods and activities of transnational corporations on its first session, UN Doc. E/CN.4/
Sub.2/1999/9 (1999) at point 26; OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions and UN Global Compact 2000, available at
www.unglobalcompact.org.
140
For example, Doe v. Unocal Corp, 963 F. Supp. 880, (DC Cal., 1997); Connelly v. RTZ
Corporation [1998] AC 854; and Lubbe v. Cape pic [2000] 2 Lloyds Rep 383. In relation to
individuals, see Kadic v. Karadzic, supra n. 127. See further, Scott, supra n. 61; Bottomley
and Kinley, supra n. 138; Addo, supra n. 138; and Muchlinski, "Corporations in International
Litigation: Problems of Jurisdiction and the United Kingdom Asbestos Case," 50 International
and Comparative Law Quarterly (2001), 1.
141
See McCorquodale with Fairbrother, supra n. 21.
142
UN Security Council Resolution 1368 (2001) of 12 September 2001 at para. 1.
143
Ibid, at para. 3.
144
UN Security Council Resolution 1373 (2001) of 28 September 2001, Preamble (emphasis
added). This reaffirms part of the Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation among States in Accordance with the Charter of the UN
1970, UN General Assembly Resolution 2625 (XXV) of 24 October 1970, and UN Security
Council Resolution 1189 (1998) of 13 August 1998.
145
UN Security Council Resolution 1373 (2001) of 28 September 2001, at para. 5.
Whilst the application of these Resolutions is yet to be fully worked out, it is clear
that the Security Council considers that acquiescence by a State in terrorist activities
by non-State actors is a breach of international law by that State.146 This is consistent
with the approach of the international human rights supervisory bodies, as set out
above.
The Security Council also considered that terrorist activities are contrary to
international law, as a threat to international peace and security, and as contrary to
the purposes and principles of the UN Charter. The Resolutions importantly do not
expressly link the terrorist activities to State responsibility. Indeed, 'a transparent
relationship between terrorist actors and the State is predictably uncommon'l47 and
so any traditional test looking at the degree of 'effective control' by a State of non-
State activities would not be applicable.148 Rather, they indicate that terrorist activities
by themselves are a breach of international law, no matter who is undertaking those
activities. They therefore demonstrate that certain actions by non-State actors (being
terrorist actions) are in breach of international law and, it must be assumed, give rise
to international obligations directly on those non-State actors.149 There are also
obligations on a State to protect the human rights of all people within their jurisdiction,
including terrorists, as the ECtHR made clear when it found the United Kingdom in
violation of the right to life of each of the IRA terrorists killed in Gibraltar.150 As the
Resolutions do not refer to crimes against humanity or other possible acknowledged
areas of individual responsibility under international law,151 they must be asserting
that terrorist actions per se give rise to individual responsibility. Whilst Security
Council Resolutions are not automatically international law, they can indicate the
direction that international law may be headed.152 This direction seems to be one
146
The acquiescence of a State in terrorist activities had been generally thought previously not
to give rise to State responsibility, Travalio, "Terrorism, International Law and the Use of
Military Force," 18 Wisconsin International Law Journal (2000), 145. C/., Cassese, "The
International Community's "Legal" Response to Terrorism," 38 International and
Comparative Law Quarterly (1989), 589.
147
Schiedeman, "Standards of Proof in Forcible Responses to Terrorism," 50 Syracuse Law
Review (2000), 262.
148
See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA) 1986
ICJ Reports 14 at para. 86-93.
149
See, for example, the debate on the issue on the web-site of the American Society of International
Law, available at www.asil.org [visited 12 December 2001].
150
McCann v. UK (1995) 21 EHRR 97, particularly para. 213.
131
The proposal that terrorism be considered an international crime subject to the jurisdiction of
the International Criminal Court was rejected by States, see UN Doc. A/CONF.183/C.1/L27/
Revl. Terrorism as a crime under customary international law was rejected by a US court in
Tel Oren v. Libyan Arab Republic 726 F.2d 774 (DC Cir) (1984).
152
See, for example, Koskenniemi, "The Place of Law in Collective Security," 17 Michigan
Journal of International Law (1996), 455; Mani, "The Role of Law and Legal Consideration
in the Functions of the United Nations," 35 Indian Journal of International Law (1995), 91;
Alvarez, "Judging the Security Council," 90 American Journal of International Law (1996),
1; Graefrath, "Leave to the Court what Belongs to the Court - The Libyan Case," 4 European
Journal of International Law (1993), 184; and Byers, Custom, Power and the Power of
Rules: International Relations and Customary International Law (Cambridge: Cambridge
University Press, 1999), especially at 40-43.
where there can be direct responsibility by non-State groups for actions that breach
international law, including international human rights law.
The developments in all these areas of international law - State responsibility,
transnational corporations and terrorism - are indicative of significant changes to
the international legal system. They all confirm the correctness of the approach
taken in Elmi to the actions by non-State actors as having consequences for the
international legal obligations of States. They also suggest that a change might
occur in the extent of international legal obligations for violations of human rights
and other breaches of international law. It is, indeed, possible to imagine an
international legal system where non-State actors have direct obligations under
international law for violations of human rights.153
CONCLUSIONS
The general approach of international human rights law has been to place the
obligations to protect human rights on States alone. This approach has begun to be
challenged by the interpretation of these obligations by international supervisory
bodies. The conclusions of the Committee Against Torture in Elmi v. Australia, in
which the actions by non-State actors were considered to be 'torture' under Article
1 of the CAT due to the creation of a fiction that those actors were operating like
State officials, is an important part of a change in the approach to obligations under
human rights treaties.
This change has seen the interpretation of the obligations of States for violations
of the prohibition on torture to include the situation where the action giving rise to
the violation is by a non-State actor. These obligations include obligations to
investigate violations by non-State actors and obligations that arise when a State
acquiesces in a situation that allows non-State actors to violate the right. This latter
obligation includes situations where a government does exist but is unable or unwilling
to offer protection from actions of torture by non-State actors, including in domestic
violence situations. This should be able to be applied to human rights violations
generally and not just to the prohibition on torture. Similar extensions of obligations
are being seen in other parts of the international legal system, including in State
responsibility and the obligations of transnational corporations under international
law.
Yet in order to find that a State has obligations in regard to the violation of human
rights caused by a non-State actor, there has been considerable ingenuity, and even
invention, by the human rights supervisory bodies. In the Elmi case the Committee
Against Torture extended the fiction of the State to include non-State actors, who at
no stage indicated that they thought that they were the State or were public officials.
Those non-State actors were, for the purpose of attribution of responsibility, given
imaginary 'official capacity'. Only by creating this fiction could 'Somalia' be
153
See Clapham, supra n. 61; and, generally, Clapham, Human Rights in the Private Sphere
(Oxford: Oxford University Press, 1993).
considered to be likely to subject Mr. Elmi to torture and only then could a functioning
State, Australia, be held responsible for a violation of the CAT. By creating this
fiction, the Committee Against Torture is peeking beneath the blindfolds of the
State-based system. It is slightly lifting the 'corporate veil' of the State.
Thus the Elmi case is indicative of a slow move away from a formalist approach
to the application of human rights treaty obligations towards a dynamic and victim-
orientated approach, where non-State actors may become directly responsible under
international law for their actions. Other developments in the international legal
system, such as a functioning international criminal law and the Security Council's
responses to terrorism, are consistent with this approach. Gradually these
developments may begin to take off the blindfolds of a State-based system. These
developments will, it is hoped, strengthen the effectiveness of international human
rights law so that it is no longer the 'maw of an international bureaucracy ... [and] a
plaything of governments and lawyers'154 but is instead an effective limitation on
oppressive power, no matter what is the source of that power.
Allott, Eunomia: New Order for a New World (Oxford: Oxford University Press, 1990) at
para. 15.66.

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TAKING OFF THE BLINDFOLDS: TORTURE BY

Robert McCorquodale and Rebecca La Forgia *

THE DEFINITION OF TORTURE

Human Rights Law Review - Volume I, Number 2 - 2001

Ireland v. UK, ibid, at para. 167.

Therefore, actions by any individual, group, organisation, national liberation

Pinochet, supra n. 9, at 650.

1. No State Party shall expel, return ("refouler") or extradite a person to another

The Committee Against Torture distinguished G.R.B. v. Sweden because in Elmi

Sadiq Shek Elmi v. Australia, supra n. 3, at para. 5.3.

OBLIGATIONS OF STATES FOR NON-STATE ACTORS UNDER

The State is obligated to investigate every situation involving a violation of

Article 4 International Law Commission (ILC) Articles on Responsibility of States for

Other international documents have endorsed this obligation on States to

For example, Principles on the Effective Prevention and Investigation of Extra-Legal,

adequate protection constituted a violation of Article 3 of the ECHR.79 Significantly,

ACQUIESCENCE BY STATES IN VIOLATIONS OF

The obligations on a State to investigate violations of human rights by non-State

" Ibid, per Lord Steyn at 608.

Veldsquez Rodriguez v. Honduras, supra n. 57, at para. 176 (emphasis added).

An example of how a State's acquiescence of the activities of non-State actors

Suppose oneself in Germany in 1935...[and] suppose that the Nazi government

On this basis, if there is a lack of protection of an individual by a State from actions

Perhaps the greatest cause of violence against women is government inaction

Her conclusions are supported by a wealth of literature on the rights of women in

acquiescent in actions by non-State actors, including actions that could amount to

prevented from scrutinising an applicant's claim under Article 3 where the

OBLIGATIONS UNDER INTERNATIONAL CRIMINAL LAW

Direct obligations on non-State actors, or what is usually called individual

Ibid, at para. 49.

perpetuators of torture.127 In addition, in determining if Furundiija's actions could

IMPLICATIONS FOR THE INTERNATIONAL LEGAL SYSTEM

[t]he conduct of a person or group of persons shall be considered an act of a

exercising elements of the governmental authority in the absence or default

been an increasing amount of energy expended in developing international legal

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