54 | P age b treatment by non-state actors ‟. 242 Rodley in his article concluded that public official has to be the perpetrator, directly or indirectly, fora violation of international human rights law to be established ‟. 243 Nevertheless, HRC seems widened the involvement of state by requiring state parties to the covenant to protect person from torture committed by either in official capacity or private capacity. 244 As it has been argued in chapter two (see section 2.3), this widening of scope of liability of state is also important for domestic criminalization of torture, thereby state will hold private individuals for crime of torture domestically. Similar to HRC but very clearly, international criminal tribunals hold that private individuals are liable for the commission of crime of torture even though they have no link with state, thereby concluded the status of the perpetrator is not essential element for establishing crime of torture [in the context of war crimes or crimes against humanity ]. ICTY trial and appeal chamber in the case of kunarac hold that the definition provided by the UNCAT is not a representative of torture in all contexts and in international customary law. 245 The definition under UNCAT is provided only for the purpose of UNCAT and in international human rights perspective. Although the tribunal agreed that acts/omission, sever infliction of pain or suffering, intention and prohibited purpose are elements of torture crime in both stream of international laws, the status of perpetrator which is essential to hold state accountable before international human rights bodies is not as such essential under international criminal law. Besides, Duwelf argue that making status of perpetrator as essential element of torture definition defeat the very aim of the convention. 246 ICTY in kunarac case provided the following reason for its departure from the definition provided under Article 1 of UNCAT. First, the definition provided by UNCAT works only the purpose of the convention only. Second, the two streams of international laws function indifferent approach regarding individuals. That is 242 OHCHR, „Human Rights Fact Sheet No. 4 Combating Torture (May 2002)34. 243 Rodley S. Nigel, note 12, 487. 244 HRC, GC No. 20, Para 2, it stated that It is the duty of the State party to afford everyone protection through legislative and other measures as maybe 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 (Emphasis added see also HRC GC 31, Para 8. 245 Kunarac et al. , note 89, Para. 495; Kunarac et al., note 89 Para 148 D. Steven, The Signature of Evil (Re) Defining Torture in International Law, (Cambridge Intersentia Publisher 2011) 477-480.
