20 | P age b prevent torture) perpetrators of torture with director indirect involvement or knowledge of public official either by subordinate state officials or by private actors. 82 However, it is not clear whether both UNCAT and ICCPR require state to criminalize torture as a separate offence. Some argued that they do not and other argued they obliged state to do so. The former argued that states parties, although they are obliged to make acts of torture punishable, are not also obliged to criminalize in their domestic laws acts amounting to torture as a separate offence under the UNCAT ‟. 83 Those who support the separate criminalization argued that unless torture is made crime as a separate offence it is difficult to maintain its absoluteness, in a sense that it is difficult to make those defenses applicable for other crime inapplicable to torture, and unless definition of torture is provided it is difficult to state to ensure appropriate sentence to torture and apply universal jurisdiction. 84 Nevertheless, jurisprudences of human rights bodies, shows that state should criminalize torture as a separate offence. For instance the HRC in its concluding observation on United States of America stated its concern about lack of comprehensive legislation criminalizing all forms of torture, and recommended that USA should enact legislation to explicitly prohibit torture provides for penalties commensurate with the gravity of such acts‟. 85 UNCAT did not require state to adopt the definition of torture provided under its article 1, but the CAT is now requiring state to include this systematically by requiring definition of torture under their national law and ensuring its compatibility with that of its definition. 86 The practice of state in this regard is inconsistence, some criminalize torture as a separate offence through enacting separate and comprehensive law, and some other prefer to define CAT, GC No. 2, Para and 26. EA. Cirimwami, Does the United Nations Convention against Torture Oblige States Parties to Criminalize Torture in their Domestic Laws (2018) 2 African Yearbooks of Human Rights 1. R. Nigel. and M. Pollard, „Criminalization of Torture State Obligations under The United Nations Convention Against Torture And Other Cruel, Inhuman Or Degrading Treatment (2006) 2 EHRLR 120; see also Clapham and others , Torture by Private Actors and „Gold-Plating‟ the Offence in National Law An Exchange of Emails in Honour of William Schabas , Arcs of Global Justice Essays in Honour of William Schabas, in Margaret M. de Guzman and Diane Marie Amann (ed) (Oxford University Press, OUP) (2018) 287-295. Available at: < https://ssrn.com/abstract=3099614 > (accessed on 28 June 2019). 85 HRC, Concluding Observation on the Fourth Periodic Report of the United States of America, CCPR/C/USA/CO/4, 2014, Para 12. APT 2008, 18-19; and see also CAT, Concluding Observation on Vietnam, UN Doc. CAT/C/VNM/CO/1, Para 6.
