49 |
P age b
provides a crime without stating the required mental state, it is presumed that the crime is punishable only when it is committed by criminal mind or intention. Internationally too intention is one of the main components which makeup the concept of torture.
221
The CAT jurisprudences show that the convention requires specific intent, that is pain and suffering must intentionally be inflicted to the victim in order to qualify as torture.
222
However, scholars argued in favor of general intent, in which it is sufficient that the actor intended to conduct the act/omission.
223
The CAT changed its approach in a recent decision of in the case of EN v. Burundi to this scholar recommendation. In this case the committee holds the view of ECtHR, in assessing intention, it considered the burden of proof shifts to the state to disprove torture once a credible allegation has been made.
224
Thus, the intent to inflict severe pain or suffering presumed based on the mere fact that the potential victims sustained such pain or suffering.
225
Generally, it is agreed that negligence would not result criminal liability for torture, as there is no torture by negligence. Finally, the above discussion shows that, with regard the element of intention, the CC reflects mental element in the UNCAT.
4.4.
Purpose
The purposive element is central to the notion of torture as understood from the practice of the international bodies.
227
It also serves as distinguishing element of torture from other ill- treatments. Similar approach is followed in the international criminal law where the element of purpose used to distinguish torture from other form of ill-treatments. The ICTY trial chamber CAT, GC No. 2, Para 15. United Nations Voluntary Fund for Victims of Torture, „Interpretation of Torture in the Light of the Practice and
Jurisprudence of International Bodies
‟ (2011) 2-30. Available at:
<
https://www.ohchr.org/Documents/Issues/Torture/UNVFVT/Interpretation_torture_2011_EN.pdf
> (accessed on 5 June 2019) (Hereinafter UNVFVT) (Emphasis added. L. Fernandez and L. Mun tingh, The criminalization of torture in South Africa (2016) 60(1) Journal of African
Law
83.
224
EN v Burundi, Communication No. 578/2013, CAT, Judgment, 2016, Para 7(3). ibid see also Selmouni v France, note 14, Para. 8. The European Court of Human Rights noted in this case where there was nod irect evidence of intent, that where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused. APT 2008, 12.
227
UNVFVT, note 222; and Rodley Nigel, note 12, 482.
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