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LEGAL FRAMEWORK<\/strong><\/p>\n <\/p>\n International Human Rights Law<\/strong><\/p>\n \u201cThe Covenant does not contain any definition of the concepts covered by article 7 nor<\/em><\/p>\n does the Committee consider it necessary to draw up a list of prohibited acts or to<\/em><\/p>\n establish sharp distinctions between the different types of punishment or treatment; the<\/em><\/p>\n distinctions depend on the nature, purpose and severity of the treatment applied\u201d<\/em>.[4]<\/a><\/p>\n \u201cFor the purposes of this Convention the term \u2018torture\u2019 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 acquiesce of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent or incidental to lawful sanctions.\u201d<\/em><\/p>\n International Humanitarian Law and International Criminal Law<\/strong><\/p>\n \u201cfor a number of years Somalia has been without a central government, that the<\/em><\/p>\n international community negotiates with the warring factions and that some of the<\/em><\/p>\n factions operating in Mogadishu have set up quasi-governmental institutions and are negotiating the establishment of a common administration. 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 1.<\/em>\u201d[16]<\/a><\/p>\n H.M.H.I. v Australia<\/em>, 2002) suggests that in these years the Committee was only prepared to recognize that the complainant was at risk of torture under Article 1, if there was no central government. It was not enough for the armed group in question to hold considerable control over a part of the country and to have set up quasi-governmental institutions.<\/p>\n \u201cwith three years having elapsed since the <\/em>Elmi decision, Somalia currently possesses a State authority in the form of the Transitional National Government, which has relations with the international community in its capacity as central Government, though some doubts may exist as to the reach of its territorial authority and its permanence. Accordingly, the Committee does not consider this case to fall within the exceptional situation in <\/em>Elmi, and takes the view that acts of such entities as are now in Somalia commonly fall outside the scope of article 3 of the Convention<\/em>.\u201d[17]<\/a><\/p>\n (b) \u201cConsent or acquiescence\u201d<\/strong><\/p>\n \u201cIt 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<\/em>\u201d.<\/p>\n Article 8 (2) (c) (i)-4: War crime of torture (NIAC)<\/strong><\/p>\n 3.Such person or persons were either hors de combat<\/em>, or were civilians, medical personnel or religious personnel taking no active part in the hostilities.<\/p>\n Article 8 (2) (c) (i)-3: War crime of cruel treatment<\/strong><\/p>\n Article 8 (2) (c) (ii): War crime of outrages upon personal dignity<\/strong><\/p>\n Article 7 (1) (f): Crime against humanity of torture <\/strong><\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n \u00a0<\/strong><\/p>\n real risk of violating other rights such as the right to be treated with humanity and dignity.<\/p>\n \u00a0<\/em><\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n \u201cIt is widely recognized, including by former Special Rapporteurs on torture and by regional jurisprudence, that rape constitutes torture when it is carried out by or at the instigation of or with the consent or acquiescence of public officials\u201d.[24]<\/strong><\/a><\/em><\/p>\n <\/p>\n \u201c[rape] constitutes torture when inflicted by or at the instigation of or with the consent or<\/em><\/p>\n acquiescence of a public official or other person acting in an official capacity\u201d.[25]<\/strong><\/a><\/em><\/p>\n <\/p>\n <\/p>\n <\/p>\n [1]<\/a> Torture and cruel, inhuman and degrading treatment are concepts that might be difficult to distinguish. Among the elements that can be taken into account to determine the threshold between the two are the severity of the conduct, the intention of the perpetrator, the purpose of the ill-treatment and the powerlessness of the victim.<\/p>\n [2]<\/a> UDHR, art. 5; ICCPR, art. 7 and 10; CAT; CRC art. 37(a). They are also prohibited by the Arab Charter (art. 8) and the ACHPR (art. 5).<\/p>\n [3]<\/a> ICCPR, art. 4(2); CAT, arts. 2(2) and (3).<\/p>\n [4]<\/a> Committee on Civil and Political Rights, General Comment No. 20 on article 7 of the International Covenant<\/p>\n on Civil and Political Rights, para. 4.<\/p>\n [5]<\/a> ICTY, 10 December 1998, Prosecutor v. Anto Furundzija [1998] ICTY 3, \u00a7 160.<\/p>\n\n
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\nFootnotes\u00a0<\/strong><\/h4>\n