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P age b
governments‟.
238
Torture committed by private individuals or state official in their private capacity does not fall within the scope of definition of Article 1 of CAT, but liable for violation when they failed to exercise due diligence to prevent violation.
239
However, in the criminal code the scope regarding to person who can be potential perpetrator of acts of torture as a crime of use of improper method is limited to public officials who is in control of the victim only. Surprisingly, the criminal code makes torture as punishable act as war crime committed by any person without providing official status. Whosoever, party to the war or armed conflict, tortured a person during wartime is punishable for war crime. Thus torture in the context of war is punishable without the status of the perpetrators, as there can be a war between state and non-state actors, as in the case of freedom fighters and defense force of government. Article 424 does not also include a person with de facto state officials and individual in their private capacity. Generally, the provision does not include non-state actors and state actors with no legal power to arrest, custody, supervision, escort or interrogation for the violation of article 424. As will be discussed in section 4.5 those persons who committed acts constituting torture without legal or de facto power to control the victim have been charged with crime of abuse of power or grave willful injury than torture. However, there are possibilities where non- state actors may commit torture on a person under their control. For instance the Criminal Procedure Code allows arrest of person by private individuals.
240
Although UNCAT does not clearly prohibit torture by private person, it warn state to prevent torture by private person. The minimum level of state involvement provided by CAT is acquiescence, which require state to take reasonable measure or due diligence to prevent its dweller from torture or provide victims of torture with remedy.
241
The UN Special Rapporteur on Torture, Nigel S. Rodley, interprets the state action requirement to be met when public officials are unable or unwilling to provide effective protection from ill-treatment (i.e. fail to prevent or remedy such acts, including ill-
238
Sadiq Shek Elmi v Australia, Communication No. 120/98, UN Doc.CAT/C/22/D/120/1998, judgment 25 May
1999), Para 6.5; see also Rachel Lord, note 3, 15.
239
Hajrizi Dzemajl et al., note 90, ibid and see Rodley S. Nigel, note 12, at 485-87; CAT, Concluding Observation on Nepal, UN doc. CAT/C/NPL/CO/2, Para 2; CAT, Concluding Observation on Austria, UN doc.
CAT/C/AUT/CO/3, Para 4. Criminal Procedure Code of Ethiopia, Proclamation No. 186/1961, Article 58 cumulative with Article 29 (1). ibid 213; see Meskele K, note 15, 54; CAT, GC No. 2, Para 18.
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