Torture in International Human Rights and International Humanitarian Law: The Actor and the Ad Hoc Tribunals

Abstract

In seeking to define torture in international humanitarian law, the ICTY and ICTR have turned to the definition of torture contained in the UN Convention against Torture for guidance. The Convention definition contains a requirement that the actor be a public official or other person acting in an official capacity. The ad hoc tribunals have put forward various views as to whether this is an element of the definition of torture in international humanitarian law. This article examines these views. Potentially more significant are the pronouncements of the tribunals on the actor element of the definition of torture in international human rights law. This article also explores these pronouncements. It compares them with the drafting history of the Convention against Torture and with the jurisprudence of the Committee against Torture, the European Court of Human Rights and the UN Human Rights Committee. It questions whether the approach of the ad hoc tribunals is part of a trend towards a wider reading of ‘the actor’ in international human rights law.