3 | P age b disposition and bodies tend to agree in four constitutive elements of torture which are also explained as elements of the definition‟. 15 Accordingly the four elements of definition are 1/ acts that inflict severe pain or suffering, 2/ the act must be intentional, 3/ the commission of the act is to achieve one of the purposes provided in the convention, and 4/ the perpetrator must act instate official capacity. But since recent time the responsibility of non-state actors for the violation of prohibition of torture under international human rights law is recognized, which to some extent makes change in the definition of the term, at least, in the context of ICCPR. The former UN Special Rapporteur on torture, Manfred Nowak, has also mentioned that these four elements contribute to comprehensive concept of torture, as distinguished from other form of ill-treatments. 17 The prohibition of torture is absolute 18 and has attained the status of jus cogens or become peremptory norm and from which the international community cannot derogate. 19 Among the legal consequences of jus cogens, it creates obligation erga omnes- that is towards the international community as opposed to those arising vis-à-vis another State- and its violation is repressed based on universal jurisdiction. 20 However, there is ongoing debate over whether jus cogens imposes obligation on States to take measure to prosecute its violation. Bossioni strongly advocates that the implication of a jus cogens are those of a duty and not of an optional rights. 21 Other counter argues that the legal interest of States which underlies the obligation erga omnes, M. Kidus, Interpretation of article one of the Convention against Torture in Light of the Practice and Jurisprudence of International Bodies (2014) 5 Beijing Law Review 49. Human Rights Committee CCPR General Comment 20: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment, UN Doc HRI/GEN/1/Rev.5 (2001) (Hereinafter HRC GC No. 20) Para 2 and 13. 17 UNCHR, Report of Special Rapporteur on Torture (2010) UN Doc A/HRC/13/39 Add, Para. 30 Committee against Torture, General Comment No. 2: Implementation of Article 2 by States Parties, 6, UN. Doc. CAT/C/GC/2(Jan. 24, 2008) (Hereinafter CAT GC No. 2) Para 2, 15 and 16. Vienna Convention on the Law of Treaties (adopted in 23 May 1969, entered into force 27 January 1980) 1155 U.N.T.S. 331 Hereinafter VCLT) Art. 53.; Human Rights Committee, General Comment No. 24 (52) (1994), UN Doc. CCPR/C.21.Rev.1/Add.6 (1994), at Para. 10; see also, Prosecutor v Anto Furundzija (Judgment) ICTY- 95-17/1-TC (10 Dec) Hereinafter Furundzija) Para 153. 20 E. de Wet, The Prohibition of Torture is an International Norm of Jus Cogens and Its Implications for National and International Customary Law (2004) 15 EJIL 97; and see also MC. Bassiouni, Accountability for International Crimes and Serious Violations of Human Rights International Crimes, Jus Cogens and Obligation Erga Omnes‟ (1996) 59 LAW & CONTEMP.PROBS 63. C. Bassiouni, note 20, 68.
