When is the Involvement of State Officials a Requirement for the Crime of Torture?

Abstract

Torture is prohibited by a certain number of international instruments — a demonstration of the willingness of the international community to outlaw torture in all its manifestations. Yet this set of legal rules seems to have generated confusion as regards the definition of torture. One controversial aspect concerns the requirement that for torture proper to be committed, it must be carried out by state officials or with their involvement. The author argues that the notion of torture depends upon the particular context in which it is used. In the field of international criminal law, the notion of torture as a crime per se, i.e. as a crime which is punishable as such, even if perpetrated sporadically and regardless of whether it is perpetrated in time of peace or war, requires the involvement of a state official. This is so because it is necessary not to ‘trivialize’ the interference of the international community into the realm of criminal law by imposing the criminalization of every single instance of wicked conduct of an entirely private nature. By contrast, the requirement of state official is not needed anymore for torture as a war crime or a crime against humanity. In both cases the quid pluris that turns the infliction of severe pain and suffering into a crime of international concern is the contextual element, i.e. the particular context of violence surrounding the criminal act, coupled with the need to protect the mental and physical integrity of human beings when they are systematically disregarded by deviant behaviours, or when a situation of armed conflict put them at great risk. On the other hand, the notion of torture is wider in non-criminal law contexts. Under human rights treaties, a state can be held responsible for every single instance of torture, including pain and suffering inflicted by a private individual against another private individual under his custody. The reason is that under such treaties states are obliged not only not to violate themselves the protected rights, but also to act as their ultimate defenders when the full enjoyment of those rights is jeopardized by private individuals. The legal definition of torture is a sort of chameleon that — while always embracing the notion that the infliction of acute pain and suffering upon a person under the control of another is required — by necessity changes the colour of its skin as far as additional elements are concerned, depending on the context in which it is situated.