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I. RELEVANT INTERNATIONAL LEGAL NORMS AND STANDARDS ISTANBUL PROTOCOL

The list of other purposes is non-exhaustive including the United Nations Standard Minimum
and the relevant purposes are not limited Rules for the Treatment of Prisoners (the Nelson
to coercive statements or confessions. Mandela Rules), the United Nations Rules for the
Treatment of Women Prisoners and Non-custodial
4. State responsibility for torture and ill-treatment Measures for Women Offenders (the Bangkok Rules)
extends to individuals acting in an official capacity, and the United Nations Standard Minimum Rules
as well as to non-State actors acting with the consent for the Administration of Juvenile Justice (the Beijing
or acquiescence of the State. As stated under article 1, Rules). The lawfulness of any sanction will be
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torture involves acts “by or at the instigation of or determined by reference to national and international
with the consent or acquiescence of a public official or law, with international law taking precedence in
12
other person acting in an official capacity”. The term case of conflict with domestic legislation. This
acquiescence necessitates a rather broad interpretation, requirement explains why corporal punishment and
under which States are responsible for the actions the death penalty are arguably prohibited under
of public officials and non-State actors who “have the Convention against Torture as interpreted by
awareness of such activity and thereafter breach the Committee and the Special Rapporteur on
[their] legal responsibility to interfere to prevent torture and other cruel, inhuman or degrading
such activity”. The principle of official capacity treatment or punishment, despite being acceptable
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therefore keeps States accountable for more than under the domestic legislation of certain States. 13
just State officials and creates a wider understanding
of the definition of torture. The Committee against 6. According to article 1 of the Convention against
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Torture has explained that where officials: Torture, the substantive concept of “torture”
comprises, most notably, the intentional and
know or have reasonable grounds to believe purposeful infliction of severe pain or suffering
that acts of torture or ill-treatment are being “whether physical or mental”. Therefore, all methods
committed by non-State officials or private of torture are subject to the same prohibition and give
actors and they fail to exercise due diligence rise to the same legal obligations, regardless of whether
to prevent, investigate, prosecute and punish the inflicted pain or suffering is of a “physical” or
such non-State officials or private actors “mental” character, or a combination thereof.
consistently with the Convention, the State
bears responsibility and its officials should be 7. Article 16 of the Convention against Torture addresses
considered as authors, complicit or otherwise the prevention of “acts of cruel, inhuman or degrading
responsible under the Convention for consenting treatment or punishment which do not amount to
to or acquiescing in such impermissible acts. 9 torture as defined in article 1”. As a broadly written
provision, article 16 covers forms of ill-treatment
5. While the definition of torture in the Convention that do not amount to torture as they lack elements
against Torture excludes “pain or suffering arising of the definition of torture, whether they relate to
only from, inherent in or incidental to lawful purpose, intention, or pain or suffering that differs
sanctions”, the legality of a sanction under national in severity. While the term “cruel, inhuman or
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law in and of itself is insufficient to render it lawful degrading treatment or punishment” is not defined in
under article 1 of the Convention. The Committee the Convention against Torture or other international
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against Torture applies this provision by determining (or regional) instruments, under international
the lawfulness of a sanction with reference to both standards it “should be interpreted so as to extend
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national and international law and standards, the widest possible protection against abuses”.

7 Manfred Nowak and Elizabeth McArthur, The United Nations Convention against Torture: A Commentary (Oxford and New York, Oxford University Press, 2008), p. 78.
See A/74/148, para. 6; and A/HRC/22/53, para. 17.
8 On the concept of “acquiescence”, see Committee against Torture, Dzemajl et al. v. Yugoslavia (CAT/C/29/D/161/2000), para. 9.2.
9 General comment No. 2 (2007), para. 18.
10 Lawful sanctions refer to legitimate practices widely accepted by the international community. See E/CN.4/1997/7.
11 General Assembly resolutions 70/175, 65/229 and 40/33, respectively.
12 Human Rights Committee, Osbourne v. Jamaica, communication No. 759/1997, para. 9.1. See also CAT/C/AFG/CO/2, para. 24 (e); CAT/C/PAK/CO/1, para. 39;
and CAT/C/MNG/CO/2, para. 26
13 E/CN.4/1997/7, paras. 7–8; and A/67/279, paras. 26–27. See also CAT/C/ATG/CO/1, para. 44; CAT/C/KOR/CO/3-5, para. 30; and CAT/C/TLS/CO/1,
para. 23.
14 Committee against Torture, general comment No. 2 (2007), para. 10; and Human Rights Committee, general comment No. 20 (1992), para. 3.
15 The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 6, footnote.

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