Last week’s decision of the UK Supreme Court in the R v TRA (Appellant) case provides an important confirmation that armed group members can be prosecuted under s134 of the Criminal Justice Act 1988. The decision should be welcomed for providing authoritative guidance on how Article 1 of the UN Convention against Torture should be interpreted, when applied to prosecutions at national level. Specifically, the judgment addresses the interpretation of the phrase ‘public official or other person acting in an official capacity’, finding that the words ‘other person acting in an official capacity’ can be interpreted to include members of armed groups which exercise governmental control over civilian population in a territory over which they control. It distinguishes these kinds of groups from armed groups whose activities are ‘purely military’. This judgment is to be welcomed as it confirms that members of non-State armed groups can be prosecuted for acts amounting to torture. It is also to be welcomed because the interpretation of Article 1 has long been discussed in academic writings (see Gaeta, Clapham & Gaeta, Fortin, Rodenhauser), and partly pertains to the larger question of when and whether armed non State actors are bound by human rights obligations.
It seems that the majority was mainly persuaded by (i) the ordinary meaning of Article 1 and (ii) the purpose of the Convention to establish a regime for international regulation of ‘official torture’, as opposed to private acts of individuals. According to the court, torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the Convention’s regime. The arguments that lead the Court to this conclusion are too detailed and varied to review in their entirety, but I want to address the following three aspects of the judgment: (i) the Supreme Court’s handling of the ordinary meaning of Article 1 (ii) its interpretation of the practice of the Committee Against Torture and (iii) the consequences of the judgment on the relationship between IHL and IHRL.
Ordinary Meaning of Article 1
In several different places in the judgment, the Court made clear that it was not convinced by the appellant’s argument that only persons acting for or on behalf of a State can perpetrate torture. Read the rest of this entry…