50 |
P age b
in the Delalic case has held that torture is distinguished from other offences of willfully causing great suffering or serious injury primarily on the base of purposive element.
228
The purpose requirement is distinguishable from the requirement of intention. The intention requirement is related to an intention to inflict pain and/or suffering, whereas the requirement of a purpose relates to the motivation or the reason behind the infliction of that pain and suffering.
229
Thus torture is committed to achieve a prohibited (specific) purpose not for all purpose. A prohibited purpose, however, does not mean illicit actor the purpose is illegal by its nature, it might be legal in other circumstances.
230
Furthermore, as Mathew pointed out, the demonstration of purpose or motive may prove valuable in assisting in the establishment of intent at trial
‟.
231
Regarding for what purpose torture is committed, Article 424 (1) provides that be it to obtain a statement or a confession, or to any other similar end, or
… to makes him give a testimony in a favorable manner. UNCAT definition also includes a purpose limitation a particular act constitutes torture only if performed for certain purposes. The act must have been undertaken for such purposes as obtaining (from the victim or a third person) information or a confession, punishing him for an act he or third person has committed or is having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.
232
Accordingly, Extracting a confession, obtaining information, imposing punishment, intimidation or coercion and discrimination are those purposes that perpetrators desire to achieve or those motivation that drive perpetrators to engage in torture. The lists of the purpose under article 424 (1) are not exhaustive as it is inferred from the phrase to any other similar ends. Similarly, according to UNCAT and its committee, the lists viewed as indicative rather than exhaustive.
233
The phrase such purpose as indicates the non- exhaustiveness of the list, nevertheless what other purpose maybe included is not clear. Scholars suggested that only those purposes that are similar with the listed purposes are included.
228
Delalic, note 14; and see also David Wand Cheryl H, note 216, 387.
229
Rodley N and Matt P, note 84, 124-5 David Wand Cheryl H, note 216, 386. L. Mathew, note 67, 314.
232
UNCAT, Art. 1. M. Nowak and E. McArthur, The United Nations Convention against Torture A Commentary (Oxford: Oxford University Press 2008) 75;
Delalic,
note 14, Para 470; and Furundzija, note 19, Para 162.
|
